Final Rule On Tribal Child Support Enforcement Programs by CMMSdocs

VIEWS: 40 PAGES: 46

									                                                                                            Tuesday,
                                                                                            March 30, 2004




                                                                                            Part II

                                                                                            Department of
                                                                                            Health and Human
                                                                                            Services
                                                                                            Administration for Children and Families

                                                                                            45 CFR Parts 286, 302, 309, and 310
                                                                                            Tribal Child Support Enforcement
                                                                                            Programs; Final Rule




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      16638               Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules and Regulations

      DEPARTMENT OF HEALTH AND                                to the Secretary of HHS (Secretary) by                the Act as a joint Federal/State
      HUMAN SERVICES                                          section 1102 of the Act, 42 U.S.C. 1302.              partnership. The goal of the Child
                                                              Section 1102 of the Act authorizes the                Support Enforcement Program (also
      Administration for Children and                         Secretary to publish regulations that                 known as the title IV–D program) is to
      Families                                                may be necessary for the efficient                    ensure that all parents financially
                                                              administration of the functions for                   support their children. The IV–D
      45 CFR Parts 286, 302, 309 and 310                      which the Secretary is responsible                    program locates noncustodial parents,
      RIN 0970–AB73
                                                              under the Act.                                        establishes paternity, establishes and
                                                                Section 455(f) of the Act, as amended,              enforces support orders, and collects
      Tribal Child Support Enforcement                        reads as follows: ‘‘The Secretary may                 child support payments from parents
      Programs                                                make direct payments under this part to               who are legally obligated to pay.
                                                              an Indian Tribe or Tribal organization                   We believe the promulgation of these
      AGENCY:  Office of Child Support                        that demonstrates to the satisfaction of              regulations is not only consistent with
      Enforcement (OCSE), Administration for                  the Secretary that it has the capacity to             the commitment of the Department to
      Children and Families (ACF),                            operate a child support enforcement                   the government-to-government
      Department of Health and Human                          program meeting the objectives of this                relationship with Indian Tribes, but also
      Services (HHS).                                         part, including establishment of                      with a productive partnership of the
      ACTION: Final rule.                                     paternity, establishment, modification,               Office of Child Support Enforcement in
                                                              and enforcement of support orders, and                all dealings with Tribes.
      SUMMARY: ACF is issuing final                           location of absent parents. The Secretary
                                                                                                                    Tribal Child Support Enforcement
      regulations to implement direct funding                 shall promulgate regulations
      to Indian Tribes and Tribal                             establishing the requirements which                      Prior to enactment of PRWORA, title
      organizations under section 455(f) of the               must be met by an Indian Tribe or Tribal              IV–D of the Act placed authority to
      Social Security Act (the Act). Section                  organization to be eligible for a grant               administer the delivery of IV–D services
      455(f) of the Act authorizes direct                     under this subsection.’’                              solely with the States. However, within
      funding of Tribal Child Support                                                                               much of Tribal territory, the authority of
                                                              Scope of This Rulemaking                              State and local governments is limited
      Enforcement (IV–D) programs meeting
      requirements contained in the statute                     On August 21, 2000, a Notice of                     or non-existent. The Constitution,
      and established by the Secretary of HHS                 Proposed Rulemaking (NPRM) and                        numerous court decisions, and Federal
      by regulation. These regulations address                Interim Final Rule were published (65                 law clearly reserve to Indian Tribes
      these requirements and related                          FR 50800 and 65 FR 50786,                             important powers of self-government,
      provisions, and provide guidance to                     respectively). The NPRM set forth the                 including the authority to make and
      Tribes and Tribal organizations on how                  proposed rules for direct funding to                  enforce laws, to adjudicate civil and
      to apply for and, upon approval, receive                Tribal IV–D agencies. The rulemaking                  criminal disputes including domestic
      direct funding for the operation of                     process is ordinarily a lengthy process.              relations cases, to tax, and to license.
      Tribal IV–D programs.                                   A number of Tribes expressed concern                  Consequently, States have been limited
                                                              that efforts they had under way would                 in their ability to provide IV–D services
      DATES: This rule is effective March 30,
                                                              be unduly delayed or disrupted if the                 on Tribal lands and to establish
      2004. For Tribes and Tribal
                                                              regulatory process had to run its                     paternity and establish and enforce
      organizations not operating a Tribal IV–
                                                              ordinary course before funds could be                 child support orders and Indian families
      D program under 45 CFR part 310, these
                                                              made available under section 455(f).                  have had difficulty getting IV–D services
      regulations are applicable March 30,                                                                          from State IV–D programs. Some child
                                                              The Interim Final Rule allowed Tribes
      2004. For Tribes operating a Tribal IV–                                                                       support enforcement services have been
                                                              and Tribal organizations currently
      D program under the Interim Final Rule,                                                                       provided through cooperative
                                                              operating comprehensive Tribal IV–D
      45 CFR part 310 will apply until no later                                                                     agreements between Tribes and States
                                                              programs comprising the five mandatory
      than October 1, 2004. Tribes operating                                                                        and have helped bring child support
                                                              elements listed in section 455(f) and
      under 45 CFR part 310 must comply                                                                             services to some Indian and Alaska
                                                              meeting the requirements specified in
      with these final regulations (45 CFR part                                                                     Native families.
                                                              the interim rule to apply for, and if
      309) no later than October 1, 2004.                                                                              Prior to enactment of PRWORA,
                                                              approved, receive direct funding to
      FOR FURTHER INFORMATION CONTACT:                        operate a Tribal IV–D program.                        Federal funding under title IV–D of the
      Paige Biava, Policy Specialist, OCSE                      This rulemaking is intended to                      Act was limited to funding State child
      Division of Policy, (202) 401–5635.                     establish the minimum requirements                    support enforcement programs and
         Deaf and hearing-impaired                            that must be satisfied by an Indian Tribe             there was no direct Federal funding to
      individuals may call the Federal Dual                   or Tribal organization to be eligible for             Tribes for child support enforcement
      Party Relay Service at 1–800–877–8339                   direct funding under title IV–D of the                activities. Federal funding was only
      from Monday through Friday between                      Social Security Act. The final regulation             available indirectly to Tribes through
      the hours of 8 a.m. and 7 p.m., Eastern                 establishes application procedures,                   States for eligible expenditures of Tribes
      Time.                                                   child support enforcement plan                        pursuant to cooperative agreements
      SUPPLEMENTARY INFORMATION:                              requirements, funding provisions, and                 with States under which the State
                                                              accountability and reporting                          delegated functions of the IV–D program
      Statutory Authority                                                                                           to the Tribal entity. The Tribal entity
                                                              requirements. OCSE is planning a series
        This final regulation implements                      of conferences across the country to                  was required to comply with all aspects
      section 455(f) of the Act, as added by                  explain, discuss, and respond to                      of title IV–D of the Act applicable to the
      the Personal Responsibility and Work                    questions on the final regulation.                    function or functions delegated to the
      Opportunity Reconciliation Act of 1996                  Additional information about these                    Tribe. Only under these circumstances
      (PRWORA) and amended by section                         conferences will be forthcoming.                      was Federal reimbursement under title
      5546 of the Balanced Budget Act of 1997                   The national Child Support                          IV–D available to the State for costs
      (Pub. L. 105–33). This final regulation is              Enforcement Program was initially                     incurred by the Tribal entity for
      also issued under the authority granted                 established in 1975 under title IV–D of               performing IV–D functions.


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                          Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules and Regulations                                           16639

         For the first time in the history of the             public with meaningful participation in               achieves the objectives of the rules and
      title IV–D program, PRWORA                              the regulatory process. ACF consulted                 is consistent with the statutory
      authorized direct funding of Tribes and                 with Tribes and Tribal organizations                  requirements. In addition, section 203
      Tribal organizations for operating child                and their representatives to obtain their             requires a plan for informing and
      support enforcement programs. The                       views prior to the publication of this                advising any small government that may
      Department recognizes the unique                        final rule. Consultations included a                  be significantly or uniquely impacted by
      relationship between the Federal                        series of six Nation-to-Nation meetings               the rule.
      government and Federally-recognized                     held across the county. In addition, a                   We have determined that the rule is
      Indian Tribes and acknowledges this                     toll free ‘‘800’’ number was created to               not an economically significant rule and
      special government-to-government                        allow for additional comments and                     will not result in the expenditure by
      relationship in the implementation of                   input from Tribes and Tribal                          State, local, and Tribal governments, in
      the Tribal provisions of PRWORA. The                    organizations and more in-depth                       the aggregate, or by the private sector, of
      direct Federal funding provisions                       individual consultations also occurred.               more than $100 million in any one year.
      provide Tribes with an opportunity to                      This rule is considered a ‘‘significant            The following are estimated Federal
      administer their own IV–D programs to                   regulatory action’’ under 3(f) of the                 annual expenditures under the Tribal
      meet the needs of children and their                    Executive Order, and therefore has been               IV–D Program: FY 2004—$18.0 million;
      families.                                               reviewed by the Office of Management                  FY 2005—$38.0 million; FY 2006—
                                                              and Budget.                                           $53.0 million; FY2007—$57.4 million.
      Principles Governing Regulatory                                                                               Accordingly, we have not prepared a
      Development                                             Executive Order 13175
                                                                                                                    budgetary impact statement, specifically
         Essential to the Federal-State-Tribal                  Executive Order 13175 (65 FR 6724,                  addressed the regulatory alternatives
      effort to ensure that noncustodial                      November 6, 2000) requires us to                      considered, or prepared a plan for
      parents support their children is                       develop an accountable process to                     informing and advising any significantly
      coordination and partnership, especially                ensure ‘‘meaningful and timely input by               or uniquely impacted small government.
      in the processing of inter-jurisdictional               Tribal officials in the development of
      cases. Therefore, we believe that all IV–               regulatory policies that have Tribal                  Congressional Review
      D programs must be administered under                   implications.’’ The purpose of                          This rule is not a major rule as
      a basic framework to ensure that the                    consultation is to strengthen the United              defined in 5 U.S.C. Chapter 8.
      objectives of title IV–D are successfully               States government-to-government
                                                              relationship with Indian Tribes and to                Assessment of Federal Regulations and
      implemented. This common title IV–D                                                                           Policies on Families
      framework does not mean that Indian                     reduce the imposition of unfunded
      Tribes are subject to the same                          mandates upon Indian Tribes. ACF                         Section 654 of the Treasury and
      regulations as States are. However, this                consulted with Tribes and Tribal                      General Government Appropriations
      regulation sets forth the minimum core                  organizations and their representatives               Act of 1999 requires Federal agencies to
      requirements that must be met in order                  to obtain their views prior to the                    determine whether a policy or
      for a Tribe or Tribal organization to                   publication of this final rule.                       regulation may affect family well-being.
      receive direct funding for IV–D                         Consultations included a series of six                If the agency’s conclusion is affirmative,
      programs.                                               Nation-to-Nation meetings in                          then the agency must prepare an impact
                                                              Albuquerque, New Mexico; Portland,                    assessment addressing criteria specified
      Regulatory Flexibility Analysis                         Oregon; Nashville, Tennessee;                         in the law. We have determined that
         The Secretary certifies, under 5 U.S.C.              Fairbanks, Alaska; Washington, DC; and                this regulation may affect family well-
      605(b), the Regulatory Flexibility Act                  Prior Lake, Minnesota on the Shakopee                 being as defined in section 654 of the
      (Pub. L. 96–354), that these regulations                Indian Reservation. Each of the                       law and certify that we have made the
      will not result in a significant impact on              consultations lasted for two and a half               required impact assessment. The
      a substantial number of small entities                  days and further follow up was                        purpose of the Tribal Child Support
      because the primary impact of these                     conducted on an individual level. In                  Enforcement Program is to strengthen
      regulations is on Tribal governments,                   addition, a toll free ‘‘800’’ number was              the economic and social stability of
      not considered small entities under the                 created to allow for additional                       families. This rule is responsive to the
      Act.                                                    comments and input by Tribes and                      needs of Tribes and Tribal organizations
                                                              Tribal organizations. The consultations               and provides them the opportunity to
      Executive Order 12866                                   were successful in elicting a wide range              design programs that serve this purpose.
        Executive Order 12866 requires that                   of questions, issues, and suggestions.                The rule will have a positive effect on
      regulations be drafted to ensure that                                                                         family well-being. Implementation of
      they are consistent with the priorities                 Unfunded Mandates
                                                                                                                    Tribal IV–D programs will result in
      and principles set forth in the Executive                 Section 202 of the Unfunded                         increased child support enforcement
      Order. The Department has determined                    Mandates Reform Act of 1995, Pub. L.                  services, including increased child
      that this rule is consistent with these                 104–4, (Unfunded Mandates Act)                        support payments, for Tribal service
      priorities and principles. The                          requires that a covered agency prepare                populations. By helping to ensure that
      regulations are required by PRWORA                      a budgetary impact statement before                   parents support their children, the rule
      and represent the requirements                          promulgating a rule that includes a                   will strengthen personal responsibility
      governing direct funding to Tribal IV–D                 Federal mandate that may result in the                and increase disposable family income.
      agencies that demonstrate the capacity                  expenditure by State, local and Tribal
      to operate a IV–D program, including                    governments, in the aggregate, or by the              Executive Order 13132
      establishment of paternity,                             private sector, of $100 million or more                 Executive Order 13132 on Federalism
      establishment, modification and                         in any one year. If a covered agency                  applies to policies that have federalism
      enforcement of support orders, and                      must prepare a budgetary impact                       implications, defined as ‘‘regulations,
      location of noncustodial parents.                       statement, section 205 further requires               legislative comments or proposed
        The Executive Order encourages                        that it select the most cost-effective and            legislation, and other policy statements
      agencies, as appropriate, to provide the                least burdensome alternative that                     or actions that have substantial direct


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      16640                     Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules and Regulations

      effects on the States, on the relationship                                   Part 309 contains a regulatory                                             standard form 269A and form OCSE
      between the national government and                                        requirement that, in order to receive                                        34A and to submit statistical and
      the States, or on the distributions of                                     funding for an independent Tribal IV–                                        narrative reports regarding its Tribal IV–
      power and responsibilities among the                                       D program, a Tribe or Tribal                                                 D program. The potential respondents to
      various levels of government.’’ This rule                                  organization must submit an application                                      these information collection
      does not have federalism implications                                      containing standard forms 424 and                                            requirements are approximately 10
      for State or local governments as                                          424A and a plan describing how the                                           Federally recognized Tribes, and Tribal
      defined in the Executive Order.                                            Tribe or Tribal organization meets or                                        organizations, during Year 1; 65
      Paperwork Reduction Act of 1995                                            plans to meet the objectives of section                                      additional Federally recognized Tribes
        This final rule contains reporting                                       455(f) of the Act, including establishing                                    and Tribal organizations during Year 2;
      requirements as proposed at 45 CFR part                                    paternity, establishing, modifying, and                                      and 75 additional Federally recognized
      309. As required by the Paperwork                                          enforcing support orders, and locating                                       Tribes and Tribal organizations during
      Reduction Act of 1995 (44 U.S.C.                                           noncustodial parents. Tribes and Tribal                                      Year 3; for a three year total of 150
      3507(d)), the Administration for                                           organizations must respond if they wish                                      grantees. This information collection
      Children and Families submitted the                                        to operate a Federally funded program.                                       requirement will impose the estimated
      requirements to the Office of                                              In addition, any Tribe or Tribal                                             total annual burden on the Tribes and
      Management and Budget (OMB) for its                                        organization participating in the                                            Tribal organizations described in the
      review.                                                                    program would be required to submit                                          table below:

                                                                                                               Number of                   Responses per                  Average burden                  Total annual
                                      Information collection                                                   espondents                   respondent                     per response                     burden

                                                                                                                Year 1

      SF 424 .........................................................................................                             10                              1                            .75                 7.5
      SF 424A .......................................................................................                              10                              1                          3                    30
      SF 269A .......................................................................................                              10                              5                          2                   100
      45 CFR 309—Plan ......................................................................                                       10                              1                        480                 4,800
      Form OCSE 34A ..........................................................................                                     10                              4                          8                   320
      Statistical Reporting .....................................................................                                  10                              1                         24                   240

            Total ......................................................................................   ............................   ............................   ..............................         5,497.5

                                                                                                                Year 2

      SF 424 .........................................................................................                             75                              1                            .75                56.25
      SF 424A .......................................................................................                              75                              1                          3                   225
      SF 269A .......................................................................................                              75                              5                          2                   750
      45 CFR 309—Plan ......................................................................                                       65                              1                        480                31,200
      Form OCSE 34A ..........................................................................                                     75                              4                          8                 2,400
      Statistical Reporting .....................................................................                                  75                              1                         24                 1,800

            Total ......................................................................................   ............................   ............................   ..............................        36,431.25

                                                                                                                Year 3

      SF 424 .........................................................................................                          150                                1                            .75               112.5
      SF 424A .......................................................................................                           150                                1                          3                   450
      SF 269A .......................................................................................                           150                                5                          2                 1,500
      45 CFR 309—Plan ......................................................................                                     75                                1                        480                36,000
      Form OCSE 34A ..........................................................................                                  150                                4                          8                 4,800
      Statistical Reporting .....................................................................                               150                                1                         24                 3,600

            Total ......................................................................................   ............................   ............................   ..............................        46,462.5



        Total Burden for 3 Years: 88,391.25.                                     published in the Federal Register on                                         development funding for start-up IV–D
        Total Annual Burden Averaged Over                                        August 21, 2000 (65 FR 50786). The                                           programs. Because the Interim Final
      3 Years: 29,463.75 per year.                                               NPRM contained part 309, subparts A                                          Rule, part 310, applied only to Tribes
        The information collection                                               through F, and the Interim Final Rule                                        and Tribal organizations that already
      requirements were approved by OMB                                          contained part 310, subparts A through                                       operate comprehensive IV–D programs,
      under OMB number 0970–0218.                                                G. Subparts A through F were                                                 it did not include provisions for
                                                                                 essentially the same in part 309 and part                                    program development funding for start-
      Summary Description of Regulatory                                          310, with one exception. Part 309                                            up IV–D programs. Subpart G of the part
      Provisions                                                                 included proposed provisions both for                                        310 rule contained additional specific
         The following is a summary of the                                       Tribes and Tribal organizations that                                         requirements for interim funding of
      regulatory provisions included in this                                     already are able to operate                                                  operational comprehensive Tribal IV–D
      final rule. The Notice of Proposed                                         comprehensive IV–D programs, and for                                         programs. On the effective date of these
      Rulemaking (NPRM) and Interim Final                                        Tribes and Tribal organizations that do                                      regulations, part 310 will become time-
      Rule for Comprehensive Tribal Child                                        not already operate comprehensive IV–                                        limited. For Tribes operating a Tribal
      Support Enforcement Programs were                                          D programs and need program                                                  IV–D program under the Interim Final


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                          Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules and Regulations                                        16641

      Rule, 45 CFR part 310 will be applicable                   This section establishes definitions               ‘‘Budget Information—Non-
      to grants covering the period up to the                 for terms used throughout part 309 of                 Construction Programs,’’ must be
      first day of the quarter beginning 6                    this final rule. We also want to make                 completed and include: A quarter-by-
      months after the date of publication of                 clear that underlying these regulations               quarter estimate of expenditures for the
      the final regulations for 45 CFR part                   is the recognition that many Tribal                   funding period; notification of whether
      309. Tribes operating under 45 CFR part                 customs and traditions have the force                 the Tribe or Tribal organization is
      310 must make changes to their current                  and effect of law. We have determined                 requesting funds for indirect costs and
      program to comply with this final rule                  that such Tribal customs are equivalent               if so, an election of a method to
      not later than the first day of the quarter             to ‘‘common law’’ as described by                     calculate estimated indirect costs; a
      beginning 6 months after the date of                    William Blackstone: ‘‘[t]he lex non                   narrative justification for each cost
      publication of the final rule in order to               scripta, or unwritten law, includes not               category on the form; a statement that
      receive continued IV–D funding.                         only general customs, or the common                   the Tribe or Tribal organization has or
         Since issuance of the proposed rule,                 law properly so called; but also the                  will have the non-Federal share of
      we have also made changes to Sections                   particular customs of certain parts of the            program expenditures available, as
      286 and 302. Part 286 was modified to                   kingdom; and likewise those particular                required, or a request for a waiver of the
      comply with the distribution                            laws, that are by custom observed only                non-Federal share in accordance with
      requirements found in part 309 of the                   in certain courts and jurisdictions’’                 § 309.130(e), if appropriate. These new
      rule. Changes were made to part 302 to                  (Blackstone, 1 Commentaries on the                    requirements are based on our
      include cooperation with Tribal IV–D                    Law of England 62).                                   experience with the Tribal IV–D
      agencies as a requirement for State IV–                    Section 309.10 outlines who is                     programs currently funded under the
      D agencies.                                             eligible to apply for Federal funding to              Interim Final Rule. We discovered that
                                                              operate a Tribal IV–D program.                        our requirements in the interim rule
      45 CFR Chapter II
                                                              Proposed § 309.10 required a Tribe or                 were not explicit enough to ensure we
      Tribal TANF Provisions, Section 286,                    Tribal organization to have at least 100              received the information necessary to
      Subpart C—Tribal TANF Plan Content                      children under the age of majority in the             make an informed decision on funding.
      and Processing                                          population subject to the jurisdiction of             In our review of the applications, we
         Section 286.155 sets out the eligibility             the Tribe in order to be eligible to                  found that it was necessary to request
      provisions for Tribal TANF in                           receive Federal funding to operate a                  the information listed in
      relationship to assignment of child                     Tribal IV–D program. In response to                   § 309.15(a)(2)(i)–(iv). These new
      support. This section currently requires                comments, we added a provision at                     requirements will save time for the
      the Tribal TANF agency to have                          § 309.10(c) that, if a Tribe or Tribal                applicant and OCSE by making
      procedures for ensuring that child                      organization can demonstrate to the                   immediately available all information
      support collections in excess of the                    satisfaction of the Secretary the capacity            needed for approval and funding
      amount of Tribal TANF received by the                   to operate a child support enforcement                decisions.
      family must be paid to the family. The                  program and provide justification for
                                                              operating a cost effective program with                  We added language at § 309.15(a)(3)
      section was modified to eliminate                                                                             giving Tribes an option regarding the
      references to payments to the family                    less than the minimum number of
                                                              children, it may be considered eligible               inclusion of indirect costs. If a Tribe or
      because distribution of these collections                                                                     Tribal organization’s budget request
      is now addressed in § 309.115 of this                   for direct funding under a waiver.
                                                              Details on what information must be                   includes indirect costs as part of its
      rule.                                                                                                         request for Federal funds, such requests
                                                              included in a waiver request are
      45 CFR Chapter III                                      provided in the regulation at                         may be submitted in one of two ways.
                                                              § 309.10(c)(1) and (2) and the waiver                 For applications which include indirect
      Section 302, State Plan Requirements                                                                          costs, we have determined that an
                                                              request must be included in the original
         Section 302.36 details the State plan                application.                                          applicant may, at its option, either
      requirement for States to cooperate with                                                                      calculate the estimated indirect costs by
      other states in interstate IV–D cases.                  Subpart B—Tribal IV–D Program                         documenting the dollar amount of
      This section title and content is                       Application Procedures                                indirect costs allocable to the IV–D
      modified to include cooperation with all                   Section 309.15 establishes what must               program, or submit its current indirect
      Tribal IV–D programs. Section                           be included in an application for direct              cost rate negotiated with the Department
      302.36(a)(2) requires States to extend                  funding. The application must include a               of the Interior and a dollar amount of
      the full range of services available under              Standard Form (SF) 424, ‘‘Application                 indirect costs based on that rate. If the
      its IV–D plan to all Tribal IV–D                        for Federal Assistance,’’ SF 424A,                    Tribe elects to submit actual estimated
      programs.                                               ‘‘Budget Information-Non-Construction                 costs attributable to the Tribal IV–D
      Part 309—Comprehensive Tribal Child                     Programs’’ and a Tribal IV–D plan—a                   program, the methodology used to arrive
      Support Enforcement (CSE) Programs                      comprehensive statement that                          at the dollar amount must be included
                                                              demonstrates the capacity of the Tribe                in the application. Whichever option an
      Subpart A—Tribal Child Support                          or Tribal organization to operate a IV–               applicant chooses, the applicants
      Enforcement Program (IV–D) Program:                     D program meeting the objectives of title             obligations remains the same: Tribal IV–
      General Provisions                                      IV–D. This section also describes annual              D grantees are responsible for ensuring
        Section 309.01 provides the general                   budget submissions including a specific               that actual expenditures of Federal IV–
      provisions. Section 309.05 defines key                  mechanism to deal with requests for                   D funds are directly, demonstrably
      terms. We added a number of                             inclusion of indirect costs.                          attributable to operation of the IV–D
      definitions for clarification and to make                  The provisions in proposed § 309.15                program, i.e., all actual costs claimed
      the rule easier to read. Definitions were               described what was included in the                    under the IV–D grant must be allocable
      added for the following terms: income,                  initial application, including the SF 424             to the IV–D program. The Federal
      non-cash support, notice of disapproval,                and 424A, as well as the Tribal IV–D                  statute at 42 U.S.C. 651 limits the use of
      OCSE, program development plan,                         plan. We expanded this provision to                   Federal IV–D funds to the purposes
      TANF and Tribal custom.                                 clarify the requirements. The SF 424A,                enumerated in that section, whether


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      16642               Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules and Regulations

      such costs are characterized as ‘‘direct’’              a progress report that describes                      program, a plan amendment must be
      or ‘‘indirect’’ costs. Grantees are                     accomplishments in carrying out the                   submitted at the earliest reasonable
      prohibited from shifting costs to IV–D                  plan, as required by § 309.170(b)(6),                 time. The effective date of a plan or plan
      grants which are not attributable to                    must be submitted with the next annual                amendment may not be earlier than the
      operation of the IV–D program.                          refunding request.                                    first day of the fiscal quarter in which
      Adjustments will be made for any                           New language was added at paragraph                a plan or amendment is approved.
      differences between estimated and                       (b) indicating that the approval and                     Section 309.40 describes the basis for
      actual costs attributable to the IV–D                   disapproval procedures for applications               disapproval of a Tribal IV–D program
      program.                                                for start-up funding are found in                     application, IV–D plan or plan
         In the Temporary Assistance for                      §§ 309.35, 309.40, 309.45 and 309.50.                 amendment. An application, plan or
      Needy Families (TANF) program, even                     We also added language that clarifies                 plan amendment will be disapproved if
      though Tribal grantees may use their                    that an application for start-up funding              the Secretary determines that: It fails to
      negotiated indirect cost rate to calculate              is not subject to administrative appeal.              meet, or no longer meets one or more of
      indirect costs, total actual costs are                     Paragraph (c) of § 309.16 indicates                the Federal requirements; the required
      limited and may not go beyond a                         that start-up funding is limited to                   Tribal laws, codes or regulations are not
      regulatory cap on administrative                        $500,000 and must be obligated and                    in effect; or the application is not
      expenditures. Similarly, in the Tribal                  liquidated within two years from the                  complete (after the Tribe or Tribal
      IV–D program, Tribal grantees may use                   first day of the quarter after the start-up           organization has had the opportunity to
      their negotiated indirect cost rate to                  application is approved. The Secretary                submit all necessary information.) A
      calculate estimated indirect costs, but                 will consider a request to extend the                 written Notice of Disapproval will be
      the Federal statute limits the total                    period of time during which the start-up              sent to the Tribe or Tribal organization
      amount of costs that may be claimed to                  funding is available or increase the                  upon determination that any of the
      those that are directly attributable to                 amount of funding provided. The                       conditions for disapproval applies. If
      administration of the IV–D program.                     language that addressed the no-cost                   the application, plan or plan
         We also added language at                            extension or the additional start-up                  amendment is incomplete and fails to
      § 309.15(a)(4) that the initial application             funding was only found in the preamble                provide enough information to make a
      must include a comprehensive                            discussion of the NPRM and is now                     determination, the Secretary will
      statement identifying how the Tribe or                  clearly stated in the final rule in                   request the necessary information.
      Tribal organization is meeting the                      paragraphs (c)(1) and (c)(2).                            Section 309.45 provides that a Tribe
      requirements of subpart C of this part,                    Proposed §§ 309.20 and 309.30 were                 or Tribal organization may request
      and that describes the capacity of the                  consolidated in the final rule as § 309.20            reconsideration of disapproval of a
      Tribe or Tribal organization to operate a               for clarity. Section 309.20 now                       Tribal IV–D application, plan or plan
      IV–D program which meets the                            addresses who submits a Tribal IV–D                   amendment and describes the process.
      objectives of title IV–D of the Act.                    application and where it must be                      The request for reconsideration must
         Section 309.16 establishes the rules                 submitted. The authorized                             include all documentation that is
      for a Tribe or Tribal organization to                   representative of a Tribe or Tribal                   relevant and supportive of the
      apply for start-up funding authorized                   organization must sign and submit the                 application, plan or plan amendment
      under § 309.65(b) if the Tribe or Tribal                application. Two copies of an                         and a written response to each ground
      organization cannot, at the time of                     application or plan amendment must be                 for disapproval. The request for
      application, meet all the Tribal IV–D                   submitted: the original to the OCSE                   reconsideration must also include
      plan requirements in § 309.65(a). In                    Central Office, and a copy to the                     whether the Tribe or Tribal organization
      addition to the application requirements                appropriate regional office.                          requests a meeting or conference call
      listed in § 309.15 above, a Tribe or                       Proposed §§ 309.25 and 309.35 were                 with the Secretary. The Secretary will
      Tribal organization must include a                      consolidated as § 309.35 for clarity.                 have a 60-day period to make a written
      program development plan describing                     Section 309.35 now outlines the                       determination affirming, modifying or
      how a Tribal IV–D agency will meet any                  procedures for review of IV–D program                 reversing disapproval of the application.
      Tribal IV–D plan requirements not                       applications, plans and plan                          Disapproval of start-up funding or of a
      currently met within a reasonable,                      amendments. The Secretary will                        request for waiver of the 100-child rule
      specific period of time, not to exceed                  determine whether the application, plan               or waiver of the required Tribal share of
      two years. Funding is limited to                        or plan amendment meets the                           expenditures is not subject to
      $500,000. In extraordinary                              requirements not later than 90 days after             administrative appeal.
      circumstances, the Secretary may grant                  receipt. If additional information is                    If we intend to disapprove an existing
      a no-cost extension of time.                            required, the determination will be                   IV–D plan, we will send the Tribe a
         The language at proposed                             made within 45 days of receipt of all                 Notice of Intent to Disapprove the plan.
      § 309.65(b)(1) and (2) contained                        necessary information. Determinations                 The Tribe may request a hearing within
      requirements for a start-up application                 as to whether the Tribal IV–D plan,                   60 days of the date of the notice of our
      and a program development plan. In                      including plan amendments, meets or                   intent to disapprove the plan if the
      order to clarify the rule, we moved that                continues to meet the requirements are                Tribe waives its right to a
      language to § 309.16(a)(4) and (5). We                  based on applicable Federal statutes and              reconsideration under § 309.45.
      added language at § 309.16(a)(3) that if                regulations. Guidance may be furnished                Although we received no written
      a Tribe or Tribal organization’s budget                 to assist in interpretation. All relevant             comments on this section, we added the
      for start-up funding includes a request                 changes required by new Federal                       opportunity for a hearing prior to
      for indirect costs, a mechanism parallel                statutes, rules, regulations and                      disapproval of an existing Tribal IV–D
      to that described at § 309.15(a)(3) must                interpretations are required to be                    plan because of the significant
      be used. If a Tribe or Tribal organization              submitted so that OCSE may determine                  consequences of Tribal plan
      receives funding based on submission                    whether the plan continues to meet                    disapproval.
      and approval of a Tribal IV–D                           Federal requirements. If a Tribe or                      Section 309.50 describes the
      application which includes a program                    Tribal organization intends to make any               consequences of disapproval of an
      development plan under § 309.16(a)(5),                  substantive change to the Tribal IV–D                 application or plan amendment. If an


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      application is disapproved, the Tribe                   (13) procedures for intergovernmental                 are made available to the public upon
      can receive no direct funding until a                   case processing; and (14) Tribally-                   request and that the plan also includes
      new application is submitted and                        determined performance targets.                       procedures under which the agency
      approved. If a plan amendment is                           Section 309.65(b) includes a provision             must promptly open a case record and
      disapproved, there is no funding for the                for Tribes or Tribal organizations that               determine necessary action. This
      proposed activity.                                      can demonstrate the capacity to operate               requirement is found at § 309.65(a)(2).
        A Tribe or Tribal organization may                    a IV–D program but that are unable at                    The plan must include evidence that
      reapply at any time once it has                         the time of application to satisfy all of             all Federal funds and amounts collected
      remedied the circumstances that led to                  the requirements of paragraph (a) to                  by the Tribal IV–D agency are protected
      disapproval of the application, plan or                 request start-up funding. The NPRM at                 against loss. Tribes and Tribal
      plan amendment.                                         § 309.65(b) outlined what must be                     organizations may comply with this
                                                              included in a start-up application.                   requirement by submitting
      Subpart C—Tribal IV–D Plan
                                                              Those provisions are now found at                     documentation that every person who
      Requirements
                                                              § 309.16. The Tribe or Tribal                         receives, disburses, handles, or has
         Section 309.55 states that subpart C of              organization may demonstrate capacity                 access to or control over funds collected
      § 309 defines the Tribal IV–D provisions                to operate a Tribal IV–D program by                   is covered by a bond or insurance
      that are required to demonstrate the                    submission of an application for start-up             sufficient to cover all losses. In response
      Tribe or Tribal organization has the                    funding as required by § 309.16.                      to comments we eliminated as
      capacity to operate a child support                     Proposed § 309.65(c) said that the                    duplicative the language in proposed
      enforcement program.                                    Secretary will cease funding to a Tribe               § 309.75(d)(3) that specified, ‘‘the
         Section 309.60 describes who is                      or Tribal organization’s start-up efforts if          requirements of this section do not
      responsible for administration of the                   that Tribe or Tribal organization fails to            reduce or limit the ultimate liability of
      Tribal IV–D program under the plan.                     demonstrate satisfactory progress                     the Tribe or Tribal organization for
      The Tribe or Tribal organization must                   pursuant to §§ 309.15(b)(2) and                       losses of support collections from the
      designate an agency to administer the                   309.25(d) toward putting a full program               Tribal CSE agency’s program.’’
      Tribal IV–D plan. The Tribe or Tribal                   in place. The language was revised for                   The plan must include that notices of
      organization is responsible and                         clarity and now says, ‘‘The Secretary                 support collected, itemized by month of
      accountable for the operation of the                    may cease start-up funding to a Tribe or              collection, are provided to families
      Tribal IV–D program. If a Tribe or Tribal               Tribal organization of that Tribe or                  receiving services under the Tribal IV–
      organization delegates any functions of                 Tribal organization fails to satisfy one or           D program at least once a year and to
      the Tribal IV–D program to another                      more provisions or milestones described               either the custodial or noncustodial
      Tribe, State, and/or another agency or                  in its program development plan within                parent upon request. The plan must
      entity, the Tribe or Tribal organization                the timeframe specified in such plan.’’               include a certification that the Tribe or
      is responsible for securing compliance                  This requirement is now found at                      Tribal organization will comply with
      with the requirements of the plan. The                  309.65(b)(2).                                         the provisions of chapter 75 of title 31
      Tribe or Tribal organization is                            In §§ 309.70 through 309.120, we                   of the U.S.C. (the Single Audit Act of
      responsible for submitting copies and                   eliminate duplicative language in the                 1984, Pub. L. 98–502, as amended) and
      appending to the Tribal IV–D plan any                   introduction to each section that read,               OMB Circular A–133.
      agreements, contracts, or Tribal                        ‘‘A Tribe or Tribal organization                         We added a new provision at
      resolutions between the Tribal IV–D                     demonstrates capacity to operate a                    § 309.75(e) that if the Tribal IV–D
      agency and a Tribe, State, other agency                 Tribal CSE program meeting objectives                 agency intends to charge an application
      or entity.                                              of title IV–D of this Act.’’ The language             fee, the plan must contain provisions
         Section 309.65(a) describes what a                   is unnecessary as approval of a plan is               that the fee will be uniformly applied
      Tribal IV–D plan must include in order                  based on the contents of the plan. the                and cannot exceed $25.00; that in
      to be approved and receive Federal                      new introductory language reads: ‘‘A                  intergovernmental cases referred for
      funds for the operation of the Tribal IV–               Tribe or Tribal organization must                     services, the application fee may only be
      D program. This part outlines the 14                    include in its Tribal IV–D plan a                     charged by the jurisdiction where the
      required elements which include: (1) A                  description of. * * *’’                               individual applies for services; that fees
      description of the population subject to                   Section 309.70 requires that the Tribe             may not be charged to individuals
      the jurisdiction of the Tribal court or                 or Tribal organization include a                      receiving services under titles IV–A, IV–
      administrative agency for child support                 description of the population subject to              E foster care assistance or XIX
      purposes; (2) evidence that the Tribe has               the jurisdiction of the Tribal court or               (Medicaid) of the Act; and that the
      in place procedures for accepting all                   administrative agency for child support               Tribal IV–D agency may recover actual
      applications for IV–D services and                      enforcement purposes and certify that                 costs of providing services in excess of
      providing IV–D services required by law                 there are at least 100 children under the             the application fee. Fees collected and
      and regulation; (3) assurance that due                  age of majority in the population subject             costs recovered are considered program
      process rights are protected; (4)                       to the Tribe’s jurisdiction, in accordance            income and must be used to reduce the
      administrative and management                           with § 309.10 of this part and subject to             amounts of expenditures for Federal
      procedures; (5) safeguarding procedures;                § 309.10(c)                                           matching. The Tribal IV–D agency must
      (6) maintenance of records; (7) copies of                  Section 309.75 outlines the                        exclude from its quarterly expenditure
      applicable Tribal laws and regulations                  administrative and management                         claims an amount equal to all fees
      (8) procedures for the location of                      procedures that must be included in the               which are collected and costs recovered
      noncustodial parents; (9) procedures for                plan. The plan must include a                         during the quarter. Assessment of a fee
      the establishment of paternity; (10)                    description of the agency and the                     and/or recovery of costs are not
      guidelines for the establishment and                    distribution of responsibilities within               mandatory requirements, but optional
      modification of child support                           the agency. In response to comments,                  provisions that some Tribes may choose
      obligations; (11) procedures for income                 we eliminated as duplicative the                      to use.
      withholding; (12) procedures for the                    requirement that the plan includes                       Section 309.80 outlines what
      distribution of child support collections;              procedures under which applications                   safeguarding procedures a Tribe or


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      Tribal organization must include in its                 necessary for reporting and                           ‘otherwise barred by Tribal law’ is
      plan. The plan must include procedures                  accountability. Records must be                       intended to cover situations where,
      under which the use or disclosure of                    maintained in accordance with 45 CFR                  either by action of one or both of the
      personal information received by or                     74.53. The NRPM noted that records                    parties or the application of Tribal law,
      maintained by the Tribal IV–D agency is                 would be maintained in accordance                     or both, paternity has already been
      limited to purposes directly connected                  with 45 CFR 92.42; however, it is more                conclusively determined and may not
      to the administration of the program, or                appropriate that they be maintained in                be reconsidered. In such cases, genetic
      other programs or purposes prescribed                   accordance with part 74. Both require                 testing to challenge the paternity
      by the Secretary in regulations. The plan               three-year records retention, but title               determination would not be authorized.
      must include procedures for safeguards                  IV–D falls under part 74.                             Examples of such a paternity
      that are applicable to all confidential                    Section 309.90(a) requires the                     determination would include a
      information including safeguards                        submission of copies of Tribal law,                   voluntary admission of paternity or
      against unauthorized use or disclosure                  code, regulations or procedures and                   circumstances under which the Tribe
      of information relating to proceedings or               other evidence that provides for: (1)                 has other means of recognizing paternity
      actions to establish paternity, establish,              Establishment of paternity for any child              under Tribal law. A Tribe, through its
      modify or enforce support. Also                         up to at least 18 years of age; (2)                   own custom, tradition or procedure,
      included are prohibitions against the                   establishment and modification of child               may recognize a man as the father or
      release of information on the                           support obligations; (3) enforcement of               may preclude a man who holds himself
      whereabouts of one party or the child to                child support obligations including                   out to be the father from challenging
      another party when a protective order                   requirements that Tribal employers                    paternity. Similarly, a Tribe may have a
      has been entered, and against the release               comply with income withholding; and                   conclusive presumption of paternity
      of information if the Tribe has reason to               (4) location of custodial and                         when a child is born to married parents
      believe the release of the information                  noncustodial parents. In the absence of               or if a noncustodial parent has been
      may result in physical or emotional                     written laws and regulations, a Tribe or              validly served in a paternity proceeding
      harm to the party or child, and any                     Tribal organization may provide in its                and failed to contest paternity in such
      other procedures in accordance with                     plan detailed descriptions of any Tribal              proceeding. A uniquely Tribal means
      specific safeguarding regulations                       custom or common law with the force                   would be acceptable as precluding the
      applicable to Tribal IV–D programs                      and effect of law which enables the                   need for genetic tests if Tribal law is
      promulgated by the Secretary. The plan                  Tribe or Tribal organization to satisfy               used to establish paternity. In such
      must also contain sanctions to be                       the requirements in paragraph (a).                    cases, because paternity has already
      imposed for unauthorized disclosure of                     Section 309.95 requires the plan to                been determined, genetic testing would
      personal information.                                   include provisions governing the                      be ‘‘otherwise barred by Tribal law.’’
         Although not specified in this final                 location of custodial and noncustodial                This language is consistent with the
      rule, in addition to programs and                       parents and their assets. The Tribal IV–              language found at section 466(a)(5)(B) of
      purposes prescribed by the Secretary,                   D agency must attempt to locate                       the Act, which mandates genetic testing
      Tribal IV–D programs are authorized to                  custodial and noncustodial parents or                 in contested cases to ensure that the
      disclose information to individuals for                 sources of income and/or assets when                  rights of both parties are protected.
      purposes authorized by Federal statute.                 location is required to take necessary                   In any case involving incest or
      If a Federal statute requires a Tribal IV–              action in a case, and must use all                    forcible rape, or in a case in which legal
      D program to share information, the                     sources of information and records                    proceedings for adoption are pending,
      agency must comply.                                     reasonably available to locate custodial              the agency need not attempt to establish
         Section 309.85 was amended to                        and noncustodial parents and their                    paternity. The agency must use
      clarify the section’s requirements.                     sources of income and/or assets. We                   accredited laboratories, which perform
      Previously, the title of the section was                added the reference to custodial parents              legally and medically-acceptable genetic
      ‘‘What reports and maintenance of                       to ensure that locate sources are used to             tests when genetic testing is used to
      records procedures must a Tribe or                      find custodial parents for whom support               establish paternity. Establishment of
      Tribal organization include in a Tribal                 has been collected and whom the Tribe                 paternity under this section has no
      IV–D plan?’’ The emphasis was on                        may be unable to find.                                effect on Tribal enrollment or
      procedures. The title now reads: ‘‘What                    Section 309.100 outlines the paternity             membership.
      records must a Tribe or Tribal                          establishment procedures that a Tribe or                 Section 309.105 indicates what
      organization agree to maintain in a                     Tribal organization must include in its               procedures governing child support
      Tribal IV–D plan?’’ This more                           plan. The agency must attempt to                      guidelines must be included in the plan.
      appropriately places the emphasis on                    establish paternity by the process set out            We changed the title of this section to
      what will be maintained. This section                   under Tribal law, code and/or custom                  better reflect its content. The section
      now requires that the Tribal IV–D plan                  and provide the alleged father an                     requires that a Tribal IV–D plan
      provide that the Tribal IV–D agency will                opportunity to voluntarily acknowledge                establish one set of child support
      maintain records necessary for proper                   paternity. In a contested paternity case              guidelines by law or by judicial action
      and efficient operation of the program                  the child and all other parties must                  for setting and modifying child support
      including: (1) Applications for child                   submit to a genetic test (unless                      obligation amounts; include a copy of
      support services; (2) efforts to locate                 otherwise barred by Tribal law) upon                  the child support guidelines; and
      noncustodial parents; (3) actions taken                 the request of any party if the request is            indicate whether non-cash payments of
      to establish paternity and obtain and                   supported by a sworn statement alleging               support will be permitted to satisfy the
      enforce support; (4) amounts owed,                      paternity, and setting forth facts                    child support obligation. In response to
      arrearages, and amounts and sources of                  establishing a reasonable possibility of              comments, we added language that the
      support collections, and the distribution               the requisite sexual contact between                  plan must indicate whether non-cash
      of such collections; (5) IV–D program                   parties; or denying paternity, and setting            payments will be permitted to satisfy
      expenditures; (6) any fees charged and                  forth facts establishing a reasonable                 support obligations and if so, require
      collected, if applicable; and (7)                       possibility of the nonexistence of sexual             that Tribal support orders allowing non-
      statistical, fiscal and other records                   contact between the parties. The phrase               cash payments also state the specific


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      dollar amount of the support obligation,                satisfy current support obligations, and              Department that specifically apply to
      and describe the types of non-cash                      pay all support collections to the family             Tribes and Tribal organizations.
      support that will be permitted to satisfy               unless the family is currently receiving                 Section 309.130 outlines the general
      the underlying specific dollar amount of                or formerly received assistance from the              mechanism for funding Tribal IV–D
      the support order. We also added                        Tribal TANF program, or the Tribal IV–                programs; financial form submittal
      language providing that non-cash                        D agency has received a request for                   requirements; the Federal share of
      payments may not be used to satisfy                     assistance in collecting support on                   program expenditures; non-Federal
      assigned support obligations.                           behalf of the family from a State or                  share of program expenditures; waiver
         The guidelines must be reviewed, and                 Tribal IV–D agency. Such requests for                 of non-Federal share of program
      if appropriate, revised at least every four             assistance may be to collect support                  expenditures; an increase in an
      years and provide a rebuttable                          assigned to the State or Tribe as a                   approved budget; obtaining Federal
      presumption that the child support                      condition of receiving assistance or to               funds and grant administration
      award based on the guidelines is the                    provide services on behalf of a family                requirements. The changes in this
      correct amount. The plan must provide                   residing in or receiving services from                section are addressed below.
      for the application of the guidelines                   the referring State or Tribe. When                       New language was added at
      unless there is a written finding or a                  support is owed to both States and                    § 309.130(a) indicating that the Tribe or
      specific finding on the record of the                   Tribes, the Tribal IV–D agency may                    Tribal organization will receive funds in
      tribunal that the application of the                    either send collections to the requesting             the amount equal to the percentage
      guidelines would be unjust or                           State or Tribe for distribution or                    specified in paragraph (c) of the total
      inappropriate in a particular case. The                 determine appropriate distribution by                 amount of approved and allowable
      guidelines must take into account the                   contacting the requesting State or Tribe              expenditures. This language was added
      needs of the child and the earnings and                 and distribute collections accordingly.               for clarity. We also added language
      income of the noncustodial parent and                   We added a new requirement that any                   explaining that Tribes receiving grants
      be based on specific descriptive and                    collections attributable to the Federal               of less than $1 million per 12-month
      numeric criteria.                                       Income Tax Refund Offset must be                      funding period will receive a single
         Section 309.110 outlines the                         applied to satisfy child support arrears.             annual award and those Tribes that
      procedures and requirements governing                   This is consistent with section 464 of                receive grants of $1 million or more per
      income withholding. The income                          the Act. Finally, we made a conforming                12-month funding period will receive
      withholding requirements are similar to                 change to Tribal TANF regulations at 45               four equal quarterly awards. The
      those requirements governing States’                    CFR 286.155 to eliminate reference to                 Department-wide grant procedures
      IV–D programs, except that income is                    payments to the family because                        require that grant funds be disbursed in
      subject to withholding once the                         distribution of collections is addressed
                                                                                                                    this manner. The programs
      noncustodial parent has failed to make                                                                        administered by the Tribes currently
                                                              in § 309.115 of this rule.
      a payment equal to the support payable                                                                        being funded under the Interim Final
      for one month. In response to comments                     Section 309.120 requires a Tribe or                Rule received their grant funds in this
      from Tribes that income withholding                     Tribal organization to specify                        fashion. This language was added to the
      may not be appropriate in all cases, we                 procedures under which the Tribal IV–                 rule to clarify the manner in which
      added language to § 309.110(h), that                    D agency will extend the full range of                funds are disbursed.
      income withholding will not be                          services available under its IV–D plan to                Section 309.130(b) outlines that the
      required in any case where either the                   respond to all requests from, and                     financial forms required must be
      custodial or noncustodial parent                        cooperate with State and other Tribal                 submitted to ACF. ACF reviews each
      demonstrates, and the tribunal enters a                 IV–D programs. The Tribe or Tribal                    application for direct funding. The
      finding, that there is good cause not to                organization must also provide                        requirements associated with the
      require income withholding; or a signed                 assurances that it will recognize child               submission of the SF 424A, ‘‘Budget
      written agreement is reached between                    support orders issued by other Tribes                 Information—Non-Construction
      the custodial and noncustodial parent                   and Tribal organizations, and by States,              Programs’’ form have changed. The rule
      which provides for an alternate                         in accordance with the requirements                   now requires a quarter-by-quarter
      agreement. We added a requirement at                    under 28 U.S.C. 1738B, the Full Faith                 estimate of expenditures for the fiscal
      § 309.110(m) indicating that the Tribal                 and Credit for Child Support Orders Act               year; notification of whether the Tribe
      IV–D agency must allocate amounts                       (FFCCSOA). ACF is making a parallel                   or Tribal organization is requesting
      withheld across multiple withholding                    change to include cooperation with                    funds for indirect costs; a narrative
      orders and that, in no case, shall the                  Tribal IV–D agencies as a requirement                 justification for each cost category on
      allocation result in a withholding for                  for State IV–D programs at 45 CFR                     the form for funding under § 309.65(a);
      one of the orders not being                             302.36.                                               and either: a statement certifying that
      implemented. Section 309.110(n) was                     Subpart D—Tribal IV–D Program                         the Tribe or Tribal organization has or
      amended by adding a requirement that                    Funding                                               will have the non-Federal share of
      the Tribal IV–D agency is responsible                                                                         program expenditures available, as
      for receiving and processing income                       Section 309.125 provides the basis on               required; or a request for a waiver of the
      withholding orders from States or other                 which Tribal IV–D program funding is                  non-Federal share in accordance with
      Tribes and ensuring orders are promptly                 determined. The funding is based on the               paragraph (e). As mentioned earlier in
      served on employers.                                    Tribal IV–D application, which includes               the preamble, we discovered that our
         Section 309.115 outlines the                         the proposed budget and a description                 requirements in the Interim Final Rule
      requirements governing distribution.                    of the nature and scope of the Tribal IV–             were not explicit enough to get the
      This section was rewritten for clarity. A               D program and gives assurance that the                information necessary to make an
      Tribal IV–D plan must outline                           program will be administered in                       informed decision on funding. In our
      procedures for distribution of child                    conformity with applicable                            review of applications from Tribes being
      support collections. As a general rule,                 requirements of title IV–D of the Act,                funded under the Interim Final Rule, we
      the Tribal IV–D agency, in a timely                     regulations contained in this part, and               found it necessary to request the
      manner, must apply collections first to                 other official issuances of the                       information listed above. Requiring the


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      information from the onset will result in                  Based on comments and experience                   tax base; little or no economic
      a timesaving for the applicant and for                  with currently operating Tribal IV–D                  development.
      OCSE, as we will have the necessary                     programs, we revised the section on                      A Tribe or Tribal organization may
      information earlier in the process and                  waiver provisions at § 309.130(e). Under              consider requesting a waiver if, for
      the approval and funding, if                            certain circumstances, the Secretary                  example, it has experienced a natural
      appropriate, will not be unduly delayed.                may grant a temporary waiver of the                   disaster, extreme weather conditions, or
         The requirement in proposed                          non-Federal share of expenditures. If a               other calamities (e.g., hurricanes,
      § 309.140 that the Tribe or Tribal                      Tribe or Tribal organization anticipates              earthquakes, and fire) whose disruptive
      organization must submit a Financial                    that it will temporarily be unable to                 impact is so significant and
      Status Report, SF 269, was moved to                     contribute part or all of the non-Federal             unpredictable that the applicant is
      § 309.130(b)(3). We eliminated proposed                 share of funding, it must submit a                    temporarily unable to satisfy the non-
      § 309.140. The final rule requires that                 written request that this requirement be              Federal share requirement; or isolated,
      the SF 269A Financial Status Report                     temporarily waived. A request for                     unanticipated economic hardship,
      (short form) be submitted quarterly. We                 waiver must be sent to ACF, and                       beyond the control of the applicant,
      decided to substitute the short form for                included with the submission of SF                    which makes it temporarily impossible
      the form previously required. The short                 424A, no later than 60 days prior to the              for the applicant to satisfy the non-
      form is more appropriate for Tribes and                 start of the funding period. If, after the            Federal share requirement. The
      Tribal organizations and requires less                  start of a funding period, an emergency               authorized representative of the Tribe or
      information than the proposed form.                     situation occurs that necessitates the                Tribal organization must sign and
      The requirements for reporting on the                   grantee to request a waiver of the non-               submit the Tribal IV–D waiver request.
      OCSE 34A, ‘‘Quarterly Report of                         Federal costs, it may do so as soon as                Applications must be submitted to the
      Collections,’’ previously found in                      the adverse affect of the emergency                   Office of Child Support Enforcement,
      proposed § 309.140 were also moved to                   situation giving rise to the request is               Attention: Tribal Child Support
      this section of the final rule. As noted                known. The request must include a                     Enforcement Program, 370 L’Enfant
      in the preamble to the NPRM, we                         statement of the amount the Tribe is                  Promenade, SW., Washington, DC
      revised the instructions for reporting on               requesting be waived; a narrative                     20447, with a copy to the appropriate
      this form. We will modify the form to                   statement describing the circumstances                regional office and must be submitted as
      apply to Tribes and Tribal organizations                and justification for the waiver; portions            soon as the adverse effect of the
      operating IV–D programs through direct                  of the Tribal budget to demonstrate that              emergency situation giving rise to the
      funding.                                                any funding shortfall is not limited to               request is known to the grantee.
                                                              the Tribal IV–D program and any                          We added language that the
         Section 309.130(c) outlines the                                                                            temporary waiver will expire on the last
      Federal share of program expenditures.                  uncommitted funds are insufficient to
                                                                                                                    day of the funding period for which the
      During the period of start-up funding, a                meet the non-Federal funding
                                                                                                                    waiver was approved. If the Tribe is
      Tribe or Tribal organization will receive               requirement; copies of any additional
                                                                                                                    unable to meet the non-Federal share in
      Federal funds equal to 100 percent of                   financial documents in support of the
                                                                                                                    subsequent years, the Tribe must submit
      the approved and allowable                              request; a detailed description of the
                                                                                                                    a new request with its next budget
      expenditures made during that period. It                attempts made to secure the necessary
                                                                                                                    submission. It should also be noted that
      is important to note that this is a change              funding from other sources; and any
                                                                                                                    if a request for a waiver is denied, the
      from the NPRM. Previously, a non-                       other documents the Secretary may
                                                                                                                    denial is not subject to administrative
      Federal match was required for Tribes                   request to make this determination.
                                                                                                                    appeal.
      applying for start-up funding. In                          In its request for a temporary waiver                 Section 309.130(f) addresses increases
      recognition of the fact that Tribes just                of the non-Federal share of                           in an approved budget, which may be
      beginning title IV–D child support                      expenditures, the Tribe or Tribal                     requested by submitting a revised copy
      enforcement funding may have very                       organization must demonstrate to the                  of the SF 424A with an explanation of
      limited funds for this activity, we have                satisfaction of the Secretary that it lacks           why additional funds are needed. Any
      eliminated the requirement for non-                     sufficient resources to provide the                   approved increase in the Tribal IV–D
      Federal match for start-up tribes. During               required non-Federal share of costs; has              budget will include a requirement for a
      the initial three years of full program                 made reasonable, but unsuccessful,                    proportional increase in the non-Federal
      operation, a Tribe or Tribal organization               efforts to obtain non-Federal share                   share. Tribes and Tribal organizations
      will receive 90 percent Federal funding                 contributions; and has provided all                   will obtain Federal funds on a draw-
      and 80 percent thereafter.                              required information requested by the                 down basis from the Department’s
         Section 309.130(d) outlines the non-                 Secretary. All statements must be                     Payment Management System.
      Federal share of program expenditures.                  supported by evidence including a                        Section 309.135 specifies the
      This subsection states that the non-                    description of how the Tribe or Tribal                requirements that apply to funding,
      Federal share of program expenditures                   organization has the capacity to provide              obligating and liquidating IV–D grant
      must be provided either with cash or                    child support enforcement services even               funds. This section outlines the funding
      with in-kind contributions and must                     though it lacks the financial resources to            period, obligation period, liquidation
      meet the requirements found in 45 CFR                   provide its required non-Federal share                period, funding reductions and
      74.23. This is a change from the NPRM,                  of program costs. The following                       extension requests. This section was
      which stated that 45 CFR part 92 was                    statements are insufficient to merit a                broken into subsections for ease of
      applicable to the administration of                     waiver without documentary evidence                   understanding.
      Tribal IV–D programs. We have                           satisfactory to the Secretary: funds                     Proposed § 309.140 required Tribes to
      amended the rule and changed each                       committed to other budget items; a high               submit a Financial Status Report, SF
      reference from 45 CFR part 92 to 45 CFR                 rate of unemployment; a generally poor                269, quarterly. Tribes must also submit
      part 74, because the language in 45 CFR                 economic condition; a lack of or a                    the Child Support Enforcement
      part 92 clearly states that title IV–D                  decline in revenue from gaming, fishing,              Program: Quarterly Report of
      programs are not required to comply                     timber, mineral rights and other similar              Collections (Form OCSE 34A) on a
      with part 92.                                           revenue sources; a small or declining                 quarterly basis. A report on the


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                          Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules and Regulations                                         16647

      liquidation of obligations must be                        Section 309.165 provides that the                   IV–D agencies and 10 other interested
      submitted using the SF 269A. While                      recourse for a Tribe or Tribal                        parties. A discussion of the comments
      these requirements must still be met,                   organization to dispute a determination               received and our responses follows:
      they have been moved to § 309.130(b)(3)                 to disallow program expenditures is
                                                                                                                    Subpart A—Tribal Child Support
      and (4), as we felt these requirements                  governed by the procedures in 45 CFR
                                                                                                                    Enforcement (IV–D) Program: General
      made more sense in the funding portion                  part 16.
                                                                                                                    Provisions
      of the rule.
         Section 309.145 outlines the                         Subpart F—Statistical and Narrative                     Section 309.01 describes the general
      allowable costs for Tribal IV–D                         Reporting Requirements                                parameters of the final regulation,
      programs carried out under § 309.65(a).                   Section 309.170 requires Tribes to                  § 309.05 defines key terms, and § 309.10
      This list is similar to the list of                     submit information and statistics for                 establishes threshold eligibility criteria.
      allowable costs in the State IV–D                       program activities and caseload for each              Section 309.01—What Does This Part
      program.                                                funding period. The required                          Cover?
         Section 309.150 outlines costs that are              information includes: (1) Total number
      allowable for start-up programs carried                 of cases, and of those, the number that                  1. Comment: Two Tribal commenters
      out under § 309.65(b). Federal funds are                are State or Tribal TANF and non-                     suggested a provision be added allowing
      available for the costs of developing a                 TANF; (2) total number of out-of-                     the Secretary to waive any conditions of
      Tribal IV–D program meeting Federal                     wedlock births in the previous year and               these regulations as long as the statutory
      requirements, provided that such costs                  total number of paternities established               requirements are met, and good cause is
      are reasonable, necessary and allocable                 or acknowledged; (3) total number of                  shown by the Tribe or Tribal
      to the program. Federal funding for                     cases and the total number of cases with              organization.
      program development generally may not                   an order; (4) total amount of current                    Response: The statute directs the
      exceed a total of $500,000 except in very               support due and collected; (5) total                  Secretary to establish requirements
      unusual or extraordinary circumstances.                 amount of past-due support owed and                   necessary to operate a Tribal child
      Allowable start-up costs and activities                 total collected; (6) a narrative report on            support enforcement program capable of
      include: planning for the initial                       activities, accomplishments, and                      meeting the program objectives of title
      development and implementation of a                     progress of the program; (7) total costs              IV–D. The final rule establishes the
      program; developing Tribal IV–D laws,                   claimed; (8) total amount of fees and                 minimum elements, which we have
      codes, guidelines, systems and                                                                                determined to be critical to the basic
                                                              costs recovered; and (9) total amount of
      procedures; recruiting, hiring, and                                                                           framework for operation of Tribal IV–D
                                                              laboratory paternity establishment costs.
      training Tribal IV–D program staff; and                   The requirements found in proposed                  programs meeting the objectives of title
      any other reasonable, necessary and                     § 309.175 were moved to § 309.170 for                 IV–D. After consideration of comments
      allocable costs with a direct correlation               clarity.                                              received on regulatory waivers, we are
      to the development of a Tribal IV–D                                                                           persuaded to permit limited waivers.
      program, consistent with the cost                       Part 310—Comprehensive Tribal Child                   We believe that Tribes should be given
      principles of OMB Circular A–87, and                    Support Enforcement (CSE) Programs                    an opportunity to request a waiver of
      approved by the Secretary.                                Part 310 establishes provisions,                    certain specific requirements in this
         Section 309.155 outlines costs that are              procedures, funding, monitoring and                   regulation. However, we believe that the
      not allowable, which are basically the                  reporting for Tribes currently operating              care taken to limit Federal regulatory
      same as those costs that are not                        a Tribal IV–D system under the Interim                requirements and to recognize Tribal
      allowable under the State IV–D                          Final Rule. Section 310.1(c) is added                 sovereignty has resulted in regulations
      program. Funds may not be used for                      indicating that on the effective date of              that are essential to a successful
      activities related to administering other               these regulations, part 310 will become               Federally-funded Tribal IV–D program.
      programs including those under the                      time-limited for Tribes operating a                   We have established criteria under
      Social Security Act; construction or                    Tribal IV–D program under the Interim                 which we will consider requests for
      major renovations; expenditures that                    Final Rule. For Tribes operating under                waiver of the following regulatory
      have been reimbursed by fees collected,                 the Interim Final Rule, 45 CFR part 310               requirements: § 309.10(a) (100-child
      including any fee collected from a State;               will be applicable to grants covering the             minimum) and § 309.130(d) (non-
      jailing of parents in Tribal IV–D cases;                period up to the first day of the quarter             Federal share of program expenditures).
      the cost of legal counsel for indigent                  beginning six months after the date of                Waivers of any other regulatory
      defendants in Tribal IV–D actions; the                  publication of this final rule. In order to           requirements are not included because
      cost of guardians ad litem or any other                 continue to receive funding, Tribes                   we have determined that these are
      costs that are not reasonable, necessary                currently operating under 45 CFR part                 essential to the administration of
      and allocable to the Tribal IV–D                        310 must make changes to their current                successful Tribal child support
      program.                                                program to comply with this final rule                enforcement programs.
                                                              not later than the first day of the quarter              2. Comment: We received positive
      Subpart E—Accountability and                                                                                  comments from States, Tribes, and
      Monitoring                                              beginning six months after the date of
                                                              publication of this final rule.                       national organizations affirming that the
        Section 309.160 indicates that OCSE                                                                         best way for Tribal IV–D programs to be
      will rely on audits required by OMB                     Discussion of Regulatory Provisions                   administered is through a direct
      Circular A–133, ‘‘Audits of States, Local               and Response to Comments                              government-to-government relationship
      Governments, and Non-Profit                                The following is a discussion of the               and direct funding. One State
      Organizations,’’ and 45 CFR part 74. The                regulatory provisions included in this                commented that it supported limiting
      Tribal IV–D program will be audited as                  final rule. The discussion follows the                the direct funding of Tribal IV–D
      a major program in accordance with                      order of regulatory text, describes each              programs to current Federally-
      section 215(c) of the circular. The                     subpart and section and addresses all                 recognized Tribes, and a Tribal
      Department may supplement the                           relevant comments.                                    organization affirmed its view that the
      required audits through reviews or                         Comments were received from 14                     basic eligibility for funds under section
      audits conducted by its own staff.                      Tribes and Tribal organizations, 15 State             455(f) of the Act was limited to


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      16648               Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules and Regulations

      Federally-recognized Tribes, as                         exhaustive list of specific services that             ‘‘Indian’’ to any Federal standard or rule
      published in the Federal Register                       may be provided under the IV–D                        governing Tribal enrollment. The
      pursuant to 25 U.S.C. 479a–1.                           program; thus, we do not list in the                  regulatory definition of ‘‘Indian’’ is not
        Response: Consistent with the                         regulation every service that may be                  intended to affect a Tribe’s inherent
      government-to-government relationship                   provided and attributed to child support              ability to determine enrollment
      between the Federal government and                      enforcement. However, §§ 309.145,                     standards or to affect the ability of any
      Indian Tribes, eligibility for direct IV–D              309.150, and 309.155 establish                        other Federal agency to appropriately
      funding of Tribal IV–D programs is                      parameters for allowable costs that may               exercise authority in this area. We agree
      extended to all Federally-recognized                    be submitted for funding at the                       that enrollment and membership are
      Indian Tribes. The list of such Tribes is               established rate. We believe the                      internal Tribal matters and not the
      found in the annual list of Federally-                  regulations establish an appropriate                  concern of the Federal Office of Child
      recognized Indian Tribes, which the                     framework for Tribal child support                    Support Enforcement. The final rule
      Secretary of the Interior publishes in the              enforcement services that may be                      defines ‘‘Indian’’ as a person who is a
      Federal Register pursuant to 25 U.S.C.                  provided under title IV–D.                            member of an Indian Tribe. ‘‘Indian
      479a–1. Any Tribe that successfully                        2. Comment: One State commenter                    Tribe’’ and ‘‘Tribe’’ mean any Indian or
      completes the Federal recognition                       noted that ‘‘competent jurisdiction’’ is              Alaska Native Tribe, band, nation,
      process is eligible to apply for direct                 used in the definition of ‘‘child support             pueblo, village, or community that the
      funding, regardless of its status at the                order’’ and ‘‘child support obligation’’              Secretary of the Interior acknowledges
      time of publication of this final rule. If              but is not defined.                                   to exist as an Indian Tribe and includes
      a Tribe is not Federally-recognized at                     Response: As used in the definition,               in the list of Federally-recognized
      the time of the publication of the final                competent jurisdiction is used in its                 Indian Tribal governments as published
      rule, but is subsequently recognized, we                common legal sense and refers to the                  in the Federal Register pursuant to 25
      will consider such Tribe eligible to                    legal authority to take actions in child              U.S.C. 479a–1.We have determined that
      apply for direct funding.                               support matters.                                      this definition of ‘‘Indian’’ is sufficient
        3. Comment: Two Tribal commenters                        3. Comment: One State commenter                    and reference to the Indian Civil Rights
      criticized the proposed regulations as                  suggested that because the definition of              Act is not necessary.
      significantly different from the                        ‘‘location’’ refers to ‘‘other sources of                Eligibility for direct IV–D funding
      document drafted by the joint Tribal/                   income and assets,’’ a definition of                  under section 455(f) of the Act is limited
      Federal workgroup.                                      ‘‘assets’’ should be added to indicate                to Federally-recognized Indian Tribal
        Response: We worked in close                          assets would include ‘‘in-kind’’ child                governments because child support
      consultation with Tribes prior to                       support.                                              enforcement necessarily requires at least
      publication of the NPRM. The proposed                      Response: We believe the definition of             delegated governmental authority.
      regulation was the result of a significant              ‘‘location’’ appropriately describes the              Because the definition of ‘‘Indian Tribe’’
      amount of effort which included not                     term as it is used in the context of child            in Pub. L. 93–638 includes some entities
      only input from the joint Tribal/Federal                support enforcement and that the word                 that are not Tribal governments, to
      workgroup, but also consultation from                   ‘‘assets’’ does not require additional                avoid confusion we have not adopted
      other stakeholders (including Tribes)                   elaboration. In-kind support is not                   that definition of ‘‘Indian Tribe.’’
      and from within the Department. While                   within the meaning of assets.                            6. Comment: One State commenter
      the draft document submitted by the                        4. Comment: One State commented                    thought the definition of Tribe was
      Tribal/Federal workgroup was                            that the definition of child support                  insufficient in defining persons and
      significant to the development of the                   order and child support obligation is                 circumstances that fall under the
      proposed regulation, the Department’s                   incorrect when it says it includes                    jurisdiction of Tribes.
      obligation to fulfill its statutory mandate             ‘‘* * * a judgment * * * for the                         Response: We disagree. For purposes
      to efficiently administer the IV–D                      support and maintenance of a child                    of these final regulations, we have
      program necessarily required broader                    * * * or of the parent with whom the                  determined that it is not appropriate or
      consultation. The NPRM published in                     child is living.’’ The commenter noted                necessary to define ‘‘Tribe’’ in terms of
      August 2000 reflected wide consultation                 that the definition would conform to the              the limits of Tribal jurisdiction. The
      and collaboration. This final regulation                Full Faith and Credit for Child Support               regulatory definition of ‘‘Tribe’’ is
      reflects that input as well as careful                  Orders Act (FFCCSOA) by deleting ‘‘of                 appropriately related to Federal
      consideration of all relevant comments                  the parent with whom the child is                     recognition of governmental entities
      received in response to the proposed                    living.’’                                             eligible for Federal funds. Such
      rule. The end result reflects the Federal                  Response: We disagree that the                     definition is not intended to have any
      government’s determination of the                       regulatory definitions are incorrect. The             effect on the exercise of Tribal or State
      minimum requirements necessary for                      proposed definitions track the definition             jurisdiction.
      the successful administration of child                  of support found in 45 CFR part 301                      7. Comment: One State commenter
      support programs capable of meeting                     governing State IV–D plans and do not                 suggested that definitions for ‘‘Tribal
      the objectives of title IV–D.                           conflict with any provision of                        resident,’’ ‘‘reservation’’ and ‘‘Indian
                                                              FFCCSOA. We have therefore retained                   Country’’ be added. A Tribal commenter
      Section 309.05—What Definitions Apply                   such definitions in the final regulation.             suggested that the regulations
      to This Part?                                              5. Comment: One Tribe thought the                  overlooked the special circumstances of
        1. Comment: One State commented                       definition of ‘‘Indian’’ found in the                 Alaska’s Tribes when employing the
      that IV–D services as defined by the                    Indian Civil Rights Act would alleviate               term ‘‘Indian Country.’’
      NPRM do not include services that a                     confusion that enrollment might be                       Response: We have determined that it
      program may provide in addition to                      required. Another thought the Pub. L.                 is not appropriate or necessary in this
      those listed in the definition. The State               93–638 definition of Indian Tribes and                regulation to define the territorial limits
      also stated that the definition does not                Tribal organizations should be used.                  of a Tribe’s authority by defining
      include services that may be prohibited.                   Response: This final Tribal child                  ‘‘Tribal resident’’ or ‘‘reservation.’’ The
        Response: It is not the intention of                  support enforcement regulation does not               parameters of ‘‘Tribal resident’’ and
      this final regulation to set forth an                   in any way link the definition of                     ‘‘reservation’’ are more appropriately


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      determined by Tribal law, the                           waiver of the § 309.10(a) requirement to              existing procedures to ease the
      jurisdiction of the Tribe’s courts or                   ensure that a Tribe or Tribal                         application process and alleviate undue
      administrative process and by                           organization has the required                         administrative burden.
      applicable Federal law, not by child                    administrative capacity to undertake a
                                                                                                                    Section 309.20—Who Submits a Tribal
      support enforcement regulations.                        child support enforcement program.
         We are aware of the special                                                                                IV–D Program Application and Where?
      circumstances in Alaska related to the                  Subpart B—Tribal IV–D Program
                                                              Application Procedures                                  We received no comments on this
      term ‘‘Indian country’’ as a consequence                                                                      section.
      of the Supreme Court’s decision in                         Section 309.15 describes what must
      Alaska v. Native Village of Venetie                     be included in a Tribal IV–D                          Section 309.25—When Must a Tribe or
      Tribal Government, 522 U.S. 520 (1998).                 application; §§ 309.20–309.30 establish               Tribal Organization Submit a Tribal IV–
      For clarification, except where                         procedures for submitting an                          D Application?
      specifically noted, throughout the                      application for funding; § 309.35                       We received no comments on this
      preamble ‘‘Indian country’’ is replaced                 describes procedures for approval of                  section. The requirements in this
      with the term ‘‘Tribal territory’’ in                   applications and Tribal IV–D plan                     section were moved to § 309.16, ‘‘What
      consideration of the special                            amendments; and §§ 309.40–309.50                      rules apply to start-up funding?’’
      circumstances in Alaska. The final                      describe procedures related to
      regulatory definition of ‘‘Indian Tribe                 disapproval actions.                                  Section 309.30—Where Does the Tribe
      and Tribe’’ encompasses all Indian                         1. Comment: We received comments                   or Tribal Organization Submit the
      Tribes and Alaska Native entities                       from two Tribal entities suggesting that              Application?
      enumerated in the Department of the                     provision be made in the regulation for                 We received no comments on this
      Interior’s listing of Federally-recognized              voluntary retrocession of a IV–D                      section. This section was combined
      entities such that each is eligible to                  program similar to the retrocession                   with § 309.20.
      apply for direct IV–D funding.                          provisions in the Tribal TANF and
         8. Comment: One Tribal commenter                     Indian Self-Determination and                         Section 309.35—What Are the
      suggested that the term ‘‘agency’’ is                   Education Assistance Act (ISDEA)                      Procedures for Review of a Tribal IV–D
      likely to be misunderstood because                      regulations.                                          Program Application, Plan and Plan
      ‘‘agency’’ refers to a geographical entity                 Response: The concept of                           Amendment?
      delineated by a Department of the                       ‘‘retrocession’’ relates to transferring
                                                                                                                       1. Comment: One Tribal commenter
      Interior Administration area.                           authority from one governmental
                                                                                                                    stated that the application process and
         Response: We believe the context of                  authority to another and is not
                                                                                                                    requirements should be the same as
      these regulations make the definition of                appropriate for these Tribal child
                                                                                                                    those outlined in the Indian Self-
      Tribal IV–D agency clearly                              support enforcement program
                                                                                                                    Determination and Education
      distinguishable from any other type of                  regulations. In the case of both the
                                                                                                                    Assistance Act (ISDEA), (Pub. L. 93–
      agency and will not result in confusion.                Tribal TANF program and contracts
                                                                                                                    638).
                                                              under the ISDEA, retrocession describes
      Section 309.10—Who Is Eligible To                                                                                Response: The differences between
                                                              the process under which a Tribe
      Apply for Federal Funding To Operate                                                                          programs eligible for contracting under
                                                              voluntarily terminates its administration
      a Tribal IV–D Program?                                                                                        Pub. L. 93–638 and child support
                                                              of a program and cedes back (or returns)
        1. Comment: Twenty-nine Tribal and                    the program to the State or Federal                   enforcement programs funded under
      State commenters opposed the                            government. If a Tribe or Tribal                      title IV–D are so significant that we have
      requirement that a Tribe have at least                  organization administering a Tribal IV–               determined it would be inappropriate to
      100 children under the age of majority                  D program decides not to continue to                  adopt similar substantive requirements.
      as defined by Tribal law or code, in the                operate a child support enforcement                   Programs are eligible for contracting
      population subject to the jurisdiction of               program, it may not cede back the                     under Pub. L. 93–638 because they are
      the Tribe to be eligible to apply for                   program to either a State or to the                   programs, services, or functions
      direct funding.                                         Federal government. Therefore we have                 otherwise provided by the Federal
        Response: The main purpose of                         determined that retrocession provisions               government under Federal statute. The
      establishing the 100-child minimum is                   are incompatible with the Tribal child                ISDEA is fundamentally different from
      to assure that Tribal IV–D programs will                support enforcement program. If a Tribe               Tribal IV–D programs which are
      be cost effective. We also believe this                 or Tribal organization decides not to                 operated by Tribal governmental entities
      threshold eligibility requirement is a                  continue administration of a Tribal IV–               under section 455(f) of the Social
      reasonable indication of necessary IV–D                 D program, it is not required to do so.               Security Act. In addition, we have
      program infrastructure. Any Tribe that                  Under the statute, administration of                  determined that an effective program
      has at least 100 children subject to its                Tribal IV–D programs is undertaken                    that efficiently delivers needed child
      jurisdiction clearly meets this                         voluntarily by Tribes and Tribal                      support services to all families,
      requirement. However, in response to                    organizations. Should they decide to do               including the effective processing of
      comments received, we have amended                      so, applicants on Tribal lands can apply              inter-jurisdictional cases, must be
      the final rule to permit waiver of the                  for IV–D services from the State as they              governed by the requirements and
      requirement that a Tribe has at least 100               always could.                                         objectives of the IV–D program rather
      children under the age of majority                                                                            than those of Indian-related programs.
      subject to its jurisdiction to be eligible              Section 309.15—What Is a Tribal IV–D                     2. Comment: One Tribal commenter
      for direct funding. Section 309.10(c) has               Program Application?                                  objected to § 309.35(a), stating that
      been added and specifies that a Tribe or                  1. Comment: One commenter stated                    allowing the Secretary or designee to
      Tribal organization with less than 100                  that the use of existing forms SF 424                 ‘‘determine whether the Tribal IV–D
      children subject to its jurisdiction may                and SF 424 A was helpful as Tribes are                program application or plan amendment
      apply for direct funding provided it can                already familiar with those forms.                    conforms to the requirements of
      make the required showing. The new                        Response: We appreciate that                        approval’’ subjects the applications to
      subsection requires justification for                   comment. We have attempted to use                     arbitrary standards.


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        Response: We disagree that Tribal IV–                 Tribal IV–D application submitted to the              part.’’ ‘‘[T]his part’’ refers to part D of
      D applications or plan amendments are                   Department under 45 CFR part 310 was                  title IV of the Social Security Act. The
      subject to arbitrary standards by                       unique and many raised complex issues                 statute specifies the mandatory
      requiring such applications and plan                    requiring consideration. For these                    objectives of title IV–D programs:
      amendments to conform to section                        reasons, we decided that 90 days was a                establishment of paternity,
      455(f) and final Tribal child support                   realistic timeframe to complete                       establishment, modification and
      enforcement regulations. We believe we                  application and plan amendment review                 enforcement of support orders, and
      have established in these regulations                   with an additional 45 days to consider                location of noncustodial parents. While
      appropriate and balanced standards for                  all necessary information requested                   the statute specifies mandatory
      the administration and operation of                     from the applicant.                                   objectives, it is left to the Secretary to
      Tribal child support enforcement                           4. Comment: One State suggested that               promulgate Tribal regulations necessary
      programs that are responsive to the                     copies of approved Tribal IV–D plans be               to accomplish these objectives. We have
      needs of Tribes and Tribal                              provided to the State. Another State                  determined that these final regulations
      organizations. The statute states clearly               commenter suggested that States be                    fulfill the statutory mandate to
      that the Secretary must ‘‘promulgate                    notified of Tribal IV–D plan approval                 ‘‘promulgate regulations establishing the
      regulations establishing the                            where the Tribe may be using a State’s                requirements which must be met by an
      requirements which must be met by an                    automated system to provide services.                 Indian Tribe or Tribal organization to be
      Indian Tribe or Tribal organization’’ to                   Response: While we will not routinely              eligible’’ for direct IV–D funding. After
      be eligible for a direct grant under title              provide copies of approved Tribal IV–D                consideration of all issues raised in
      IV–D. These final regulations establish                 plans to States or Tribes, we will notify             comments, we have established the
      such requirements and are the standards                 IV–D Directors of newly approved                      minimum requirements which we have
      against which all applications will be                  Tribal IV–D programs in the form of a                 determined are necessary to reasonably
      considered. The rule is also issued                     Dear Colleague Letter. We encourage                   support the statutory objectives of Tribal
      under the authority granted to the                      Tribes and States to stay in                          child support enforcement programs.
      Secretary by section 1102 of the Act                    communication with one another                           3. Comment: Eleven Tribal
      authorizing the Secretary to publish                    because such communication is                         commenters stated that § 309.40(a)(2)
      regulations that may be necessary for                   essential to the successful delivery of               goes beyond the statute by specifying
      the efficient administration of the                     IV–D services to children and families.               that the Secretary review the Tribe’s
      functions for which the Secretary is                    In support of that goal, we are available             laws, code, regulations and procedures.
      responsible under the Act. The Tribal                   to provide technical assistance.                      Some also stated that although a Tribe
      child support enforcement regulations                                                                         may be required to submit a copy of its
                                                              Section 309.40—What Is the Basis for
      are the product of a deliberative and                                                                         laws, approval of a Tribal IV–D plan or
                                                              Disapproval of a Tribal IV–D Program
      collaborative process under which all                                                                         plan amendment should not be based on
                                                              Application, Plan or Plan Amendment?
      relevant input was fully considered. The                                                                      the Secretary’s approval of such laws.
      result is a final regulation that we                       1. Comment: One Tribal commenter                      Response: In response to Tribes’
      believe is necessary for the efficient                  criticized the proposed rule as not                   requests for clarification, we have
      administration of the national child                    providing specific grounds for plan                   revised § 309.40(a)(2) to more clearly
      support enforcement program; one                        disapproval.                                          reflect that Tribal IV–D plans and plan
      which balances the needs of Tribes and                     Response: We have revised § 309.40 to              amendments may be disapproved if
      Tribal organizations with the need for a                clarify the specific grounds upon which               required laws, code, regulations, and
      predictable administrative framework.                   Tribal IV–D plans will be disapproved.                procedures are not in effect. While it is
        3. Comment: Four Tribal respondents                   We believe the final regulation                       necessary to ensure that the appropriate
      stated that the regulations should                      adequately specifies requirements                     statutes and laws are in place, we do not
      provide a 45-day approval time rather                   which will ensure that the objectives of              intend to ratify or otherwise approve
      than the 90-day timeframe. One Tribal                   title IV–D are met. These regulations                 Tribal law. While the Secretary is not
      respondent stated that the Federal                      balance the needs of Tribes and Tribal                approving the Tribal laws, Tribal IV–D
      timeframe for response to Tribal IV–D                   organizations with the need for a                     plans must contain enough information
      plans is appropriate.                                   predictable administrative framework so               so that the Secretary can determine that
        Response: We have decided to retain                   that Tribal child support programs                    relevant required Tribal law, regulations
      the 90-day deadline for review of                       successfully accomplish the outcomes                  and procedures are in place to operate
      applications, plans and plan                            specified in the statute. Section 309.40              a IV–D program.
      amendments with an additional 45 days                   makes clear that Tribal IV–D                             4. Comment: Four Tribal commenters
      to consider all additional necessary                    applications, IV–D plans, and plan                    stated the proposed regulations provide
      information requested from the                          amendments will be disapproved if                     that an application will be disapproved
      applicant. We have reviewed Tribal IV–                  applicable statutory and regulatory                   under certain circumstances. The
      D applications under 45 CFR part 310                    requirements are not met, required                    section should provide flexibility by
      and have determined, based on this                      procedures are not in place, or the plan              replacing ‘‘will’’ with ‘‘may.’’
      experience, that the 90-day deadline                    amendment is incomplete.                                 Response: Section 309.40 establishes
      assures that due consideration is given                    2. Comment: Five Tribal commenters                 the bases for disapproval of an
      to every Tribal IV–D application. Our                   stated that the proposed rule imposes                 application. We have not adopted the
      experience in reviewing Tribal IV–D                     requirements not included in section                  suggestion to replace ‘‘will’’ with
      applications under the Interim Final                    455(f) of the Act. The added elements                 ‘‘may.’’ As a practical matter,
      regulations demonstrated that the                       are not required by statute and should                deficiencies in Tribal IV–D plans do not
      complexity of the documents, the                        be deleted.                                           inevitably lead to formal Tribal IV–D
      technical assistance that was required,                    Response: Section 455(f) of the Act                plan disapproval under these
      the coordination of requests for                        authorizes direct funding for Tribal IV–              regulations. An incomplete plan, for
      additional information, and the                         D programs which have the capacity to                 example, is not automatically
      consideration of such information                       ‘‘operate a child support enforcement                 disapproved. Instead, we will
      required a realistic timeframe. Every                   program meeting the objectives of this                communicate with Tribal applicants


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      and request needed information. We                         We recognize that Tribal IV–D                      Tribal IV–D programs, including all
      added § 309.40(c) to clarify that if the                programs are in the early stages of                   actions undertaken on behalf of such
      application or plan amendment is                        development. In Subpart C we have                     programs. The language at § 309.60(c)
      incomplete and does not provide                         established requirements for Tribal IV–               clearly states that if the Tribe or Tribal
      sufficient information for HHS to make                  D programs which accommodate the                      organization delegates any of the
      a determination to approve or                           unique characteristics and                            functions of operating a program to
      disapprove, HHS will request additional                 circumstances of Tribes. At the same                  another Tribe, State or any other agency,
      information. However, at some point,                    time these regulations incorporate a                  the Tribe is responsible for compliance
      final action must be taken on a Tribal                  framework which has proven effective                  with the approved Tribal IV–D plan.
      IV–D plan or plan amendment and                         in delivering needed child support                       2. Comment: One commenter stated
      § 309.40 specifies the circumstances                    services to families.                                 that contracting with the State would be
      under which an application, plan or                        2. Comment: Five State commenters                  viable for many individual Alaska
      plan amendment will be disapproved.                     stated that the proposed regulations did              Tribes, rather than delegating functions
                                                              not sufficiently address issues of                    to a regional consortium.
      Section 309.45—When and How May a                       standardization and coordination                         Response: The unique circumstances
      Tribe or Tribal Organization Request                    between Tribes and States. They                       and challenges faced by child support
      Reconsideration of a Disapproval                        suggested that the lack of comparability              enforcement programs in the State of
      Action?                                                 among Tribal and State IV–D programs                  Alaska require recognition and
        1. Comment: Two Tribal commenters                     could limit the ability of these programs             accommodation so that arrangements
      recommended that the Tribe, not the                     to effectively and efficiently provide IV–            may be made for the provision of
      Secretary, should have the option to                    D services to families.                               needed services. Alaska and Alaska
      request a meeting. One commenter                           Response: We address these                         Native Tribal entities are encouraged to
      stated that conference calls and face-to-               comments more fully in the discussion                 find local solutions to meet the
      face meetings provide a critical forum                  of § 309.120, which deals with                        challenges they face. Contracting with
      for interaction, communication and                      intergovernmental coordination and                    the State or with other Native entities is
      dialogue and another endorsed the                       cooperation. We recognize that Tribal                 one mechanism for delivery of IV–D
      reconsideration process.                                and State child support programs                      services on terms that are in accordance
        Response: Tribes have the option to                   necessarily will interact with one                    with title IV–D requirements and which
      request a meeting. However, we have                     another and may do so through a variety               will enable families to receive needed
      amended the language at § 309.45(c) by                  of mechanisms. Subpart C is intended to               support.
      deleting ‘‘at the Department’s                          establish Tribal IV–D program
      discretion,’’ to eliminate any confusion.               requirements, which will enhance these                Section 309.65—What Must a Tribe or
                                                              interactions and inter-jurisdictional                 Tribal Organization Include in a Tribal
      Section 309.50—What Are the                                                                                   IV–D Plan in Order To Demonstrate
      Consequences of Disapproval of a Tribal                 effectiveness. While Tribal IV–D
                                                              programs are not required to meet all                 Capacity To Operate a Tribal IV–D
      IV–D Program Application, Plan or Plan                                                                        Program?
      Amendment?                                              requirements that apply to State IV–D
                                                              programs, nothing precludes them from                    Section 309.65(a) establishes
        We received no comments on this                       adopting any and all of the techniques                requirements under which a Tribe or
      section.                                                proven successful for States. In fact, we             Tribal organization may receive direct
      Subpart C—Tribal IV–D Plan                              encourage them to do so, but remain                   funding by submitting a Tribal IV–D
      Requirements                                            convinced that additional mandates at                 plan which meets specified criteria. We
                                                              this time are inappropriate.                          received many comments from Tribes
      Section 309.55—What Does This                                                                                 and States—some of them general and
      Subpart Cover?                                          Section 309.60—Who Is Responsible for
                                                                                                                    some specific—on this provision which
                                                              Administration of the Tribal IV–D
        1. Comment: One Tribal commenter                                                                            raised many complex and cross-cutting
                                                              Program Under the Tribal IV–D Plan?
      stated that the Tribal IV–D plan                                                                              issues.
      requirements go beyond the specific                       1. Comment: Several State                              1. Comment: Tribal and State
      requirements in the statute and that they               commenters suggested that the                         commenters provided positive
      are overly burdensome to Tribal                         regulation clarify a State’s responsibility           comments on this portion of the rule
      governments.                                            in complying with the provisions of                   establishing Tribal IV–D plan
        Response: Section 455(f) of the Act                   approved Tribal IV–D plans under                      requirements. They stated that the rule
      requires the Secretary to determine the                 agreements where a State is providing                 clearly allows for Tribal values, customs
      minimum requirements necessary for                      services under an approved Tribal IV–                 and traditions. Two Tribal commenters
      the administration of Tribal child                      D plan.                                               stated that the rule is simple and
      support programs capable of meeting                       Response: Both §§ 309.60(c) and                     provides needed flexibility.
      the objectives of title IV–D. The                       309.145((a)(3) authorize Tribal IV–D                     Response: We appreciate the
      objectives of title IV–D include the                    programs to enter into cooperative                    acknowledgment of the responsiveness
      establishment of paternity,                             arrangements with States. Under these                 to the needs of Tribes and Tribal
      establishment, modification, and                        provisions, child support enforcement                 organizations in these first regulations
      enforcement of support orders, and                      services must be provided in accordance               for Tribal IV–D programs and are
      location of absent parents. We have                     with the approved Tribal IV–D plan in                 encouraged by the positive response to
      promulgated regulations that we believe                 order for Tribes to be eligible for Federal           our efforts to accommodate the unique
      contain the minimum procedures and                      reimbursement. Rules governing the                    circumstances of Indian Tribes.
      processes necessary for successful                      negotiation of agreements between                        2. Comment: One Tribal commenter
      administration of IV–D programs, which                  Tribes and States and other entities are              stated that during the early years of the
      are capable of establishing paternity,                  not the subject of this regulation.                   IV–D program, the specifications for
      establishing, modifying, and enforcing                  However, § 309.60(c) makes clear that                 State programs were recommendations,
      support orders, and locating                            Tribes, not States, will be held                      not requirements and it should be the
      noncustodial parents.                                   accountable for the proper operation of               same for new Tribal IV–D programs. The


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      commenter suggested this rule is much                   delivering services before it would be                not have to include procedures for each
      more prescriptive than those initially                  appropriate to consider the need for                  of the 14 criteria.
      promulgated for States.                                 more specific requirements. Tribes need                  Response: We agree with the
         Response: We disagree. The final rule                to have sufficient time to operate and                commenters that section 455(f) of the
      implementing the initial Child Support                  automate programs and we need to                      Act specifies five core program
      Enforcement program established by                      understand how much time it takes                     objectives. However, we disagree that
      Part B of Pub. L. 93–647 was published                  Tribal IV–D programs to carry out                     the elements enumerated in § 309.65(a)
      in the Federal Register on June 26,                     various functions before we can                       go beyond these objectives. The statute
      1975. This publication added 45 CFR                     consider specific actions, timeframes                 specifies functions which must be
      Parts 301 (State Plan Approval and                      and processing standards or whether                   performed and explicitly delegates to
      Grant Procedures), 302 (State Plan                      such standards are necessary. These                   the Secretary of HHS the authority to
      Requirements), 303 (Standards for an                    regulations strike a balance between                  promulgate regulations ‘‘establishing the
      Effective Program) and 304 (Federal                     including requirements for specific,                  requirements which must be met by an
      Financial Participation). These are not                 proven, and critical components and                   Indian Tribe or Tribal organization to be
      recommendations. States are required to                 aspects of a child support program,                   eligible’’ for funding under title IV–D.
      operate child support enforcement                       while leaving implementation details up               While, as a matter of law, the Secretary
      programs under a specific statutory and                 to the Tribes.                                        is not limited in the number of
      regulatory framework. As State                             5. Comment: One State commenter                    requirements which may be
      programs evolved, requirements were                     stated that each Tribe should be                      promulgated, these regulations in fact
      expanded. With this rule we have set                    required to have a Central Registry and               establish only the minimum
      forth minimum requirements for Tribes                   use CSENet (an automated system for                   requirements we have determined
      to ensure effective Tribal IV–D programs                interstate case processing), or as an                 necessary for the operation of Tribal
      that are capable of delivering child                    alternative, be required to adopt the                 child support enforcement programs
      support enforcement services to                         Uniform Interstate Family Support Act                 meeting the objectives of title IV–D.
      families.                                               (UIFSA). Another State commenter                      Every element specified at § 309.65(a)
         3. Comment: One Tribal commenter                     appreciated the efforts to allow Tribes               was determined to be necessary to the
      stated that OCSE must encourage Tribes                  flexibility to develop and administer                 operation of Tribal IV–D programs
      to develop their own policies to achieve                programs consistent with Tribal laws                  capable of meeting the specific program
      program directives, defer to Tribes to                  and traditions, but thinks that the lack              objectives enumerated in the statute.
      establish standards and limit the                       of comparability among Tribal and State               This determination was made after
      imposition of Federal standards in                      programs will limit efficiency and                    careful and deliberate consideration of
      deference to Tribal authority.                          effectiveness.
         Response: We believe these initial                                                                         comments received on the proposed
                                                                 Response: The specific State
      regulations implementing the Tribal IV–                                                                       regulation as well as experience
                                                              requirements raised by the commenter
      D program provide the appropriate                                                                             administering Tribal IV–D programs
                                                              related to the Central Registry and
      recognition of Tribal sovereignty and                                                                         under the interim final regulation.
                                                              CSENet evolved over time and were not
      culture. Tribes may develop culturally-                 among the initial set of State IV–D                      7. Comment: One Tribal commenter
      appropriate policies to conform to the                  regulatory requirements. This Tribal                  stated that the regulations will not
      requirements of these regulations and                   regulation will allow Tribes to begin                 facilitate establishment and collection of
      are encouraged to do so. We have                        planning for building appropriate                     support for Native American children
      established a minimum administrative                    automated data processing systems and                 because they are too process-oriented
      framework for all Tribal IV–D programs.                 procedures over time and does not                     and prescriptive for Tribal entities to
      We recognize that individual Tribes                     mandate links to systems to which                     achieve over the short term.
      may establish IV–D programs within                      Tribes do not presently have access.                     Response: These regulations establish
      this framework through various means.                      As previously stated, we have begun                only the minimum requirements we
         4. Comment: One State commenter                      consideration of appropriate minimum                  have determined necessary for the
      stated that it is not reasonable to expect              Tribal systems automation                             operation of Tribal child support
      Tribes to be immediately accountable                    specifications with stakeholders.                     enforcement programs meeting the
      for the many requirements that have                        Where needed for effective and                     mandatory objectives of title IV–D:
      evolved over 25 years for State IV–D                    efficient programs, we have established               establishing paternity, establishing,
      programs, but that it is reasonable to                  Tribal IV–D requirements that are                     modifying and enforcing support orders,
      expect that State and Tribal IV–D                       comparable with State IV–D                            and locating noncustodial parents.
      programs will move in the same                          requirements while bearing in mind that               Every requirement established by this
      direction.                                              the statutory provision authorizing                   rule as a condition for Federal funding
         Response: We agree that State and                    direct funding to Indian Tribes was                   is intended to ensure that Tribal IV–D
      Tribal IV–D programs should move in                     enacted to provide much-needed                        programs meet the objectives of title IV–
      the same direction. As stated earlier,                  services where, historically, no services             D while at the same time recognizing
      title IV–D has been amended over the                    were available. As to the suggestion that             the unique status and circumstances of
      years to mandate specific case                          Tribes be required to adopt UIFSA, we                 Indian Tribes.
      processing actions and timeframes for                   address this issue in the discussion of                  8. Comment: Five Tribal commenters
      State action as the program has evolved                 § 309.120.                                            stated that there are too many
      and become more automated. We have                         6. Comment: Twenty-three Tribal                    requirements in the rule and these
      determined that it is premature to                      commenters objected to this section                   prevent Tribes from designing programs
      consider such specific requirements                     stating that the regulations do not match             to meet their needs. The design and
      with respect to Tribal IV–D programs.                   the statute and impose unnecessary                    implementation of Indian programs by
      Like States, Tribes need adequate time                  burdens. They stated that the 14                      Indian Tribes has proven that the most
      to develop their programs and                           elements in § 309.65(a) far exceed the                effective way to deliver services is with
      determine appropriate approaches,                       five core functions listed in the statute             programs designed by the Tribes
      levels of automation, and processes for                 at section 455(f) and that Tribes should              themselves.


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         Response: While this regulation is                   assure that assistance in obtaining child             from another Tribal or State IV–D
      responsive to the needs of Tribes and                   support is available to all who request               program. Since these regulations
      Tribal organizations, the statute itself                services or are referred to the Tribal IV–            provide for reimbursement of all
      limits the scope of this flexibility. The               D program, the rules for such programs                allowable costs of administering a Tribal
      authorization for direct Federal IV–D                   must also take into account the unique                IV–D program at the appropriate match
      funding of Indian Tribes requires that                  legal status of such Tribes. We believe               rate, it is expected that a Tribe will
      Tribes demonstrate to the satisfaction of               that these final Tribal IV–D regulations              exercise authority over Tribal members
      the Secretary a capacity for                            strike the appropriate balance.                       and others on Tribal lands to the
      accomplishing specific IV–D program                        10. Comment: One State commenter                   maximum extent legally permitted and
      objectives. As we have stated in                        stated that current IV–D regulations do               that Tribes will also provide services to
      response to other comments, every                       not allow States to refuse services to                all applicants.
      element specified at § 309.65(a) was                    particular applicants, no matter where                   12. Comment: One Tribal commenter
      determined to be necessary to the                       they reside. If the State where the                   stated that Tribes are not public
      operation of Tribal IV–D programs                       request for services is made had no                   agencies and access to Tribal IV–D
      capable of meeting the program                          jurisdiction, the State can refer the                 services should be limited to reservation
      objectives enumerated in the statute. In                applicant to an agency in the                         residents and Tribal members.
      this rule we have worked hard to ensure                 appropriate jurisdiction. The same                       Response: As stated earlier in the
      flexibility and recognize the status of                 commenter suggested that a referral                   preamble, these final regulations require
      Indian Tribes and accommodate the                       process be specified in Federal                       that Tribal child support agencies
      operational realities faced by Tribes. We               regulation for case referral among Tribes             accept all applications for services and
      agree that section 455(f) of the Act                    and between States and Tribes.                        require that the child support agency
      allows for flexibility, but such flexibility               Response: Under these regulations,                 provide all appropriate services. This is
      must be exercised within the parameters                 Tribes are not permitted to refuse                    to ensure that IV–D services are
      established in the statute. Under this                  services to any applicant. Tribal IV–D                available to all who need them.
      regulation we are confident that Tribes                 programs must take all applications and                  13. Comment: One Tribal commenter
      will be able to design and implement                    open a case for each application. We                  suggested that the wording in
      Tribal IV–D programs that meet local                    know there may be circumstances under                 § 309.65(a)(2) be changed to allow Tribal
      needs.                                                  which the only appropriate service will               IV–D agencies to refer customers
         9. Comment: Nine Tribal commenters                   be to request assistance from another                 without having to go through the
      stated that, while IV–D regulations                     Tribal or State IV–D program with the                 application process. Two other Tribal
      should have some areas of commonality,                  legal authority to take actions on the                commenters stated that ensuring access
      respect for Tribal sovereignty and                      case. We address these comments more                  to services is not a requirement of the
      recognition of the unique aspects of                    fully in the discussion of § 309.120,                 statute and should be removed from the
      Indian Tribes require accommodation                     which deals with intergovernmental                    regulation.
      for such characteristics and appropriate                coordination and cooperation.                            Response: As a practical matter, we
      flexibility in Federal regulations. These                  11. Comment: One commenter stated                  think the instances in which a Tribal
      commenters suggested that forcing                       that Tribes should be permitted to                    IV–D agency has no authority to take
      Tribal IV–D programs into the existing                  develop their own program operation                   action in a particular case will be few,
      State model violates the law recognizing                criteria and service areas.                           but in those instances the Tribal IV–D
      the unique legal status of Indian Tribes                   Response: As stated above, the statute             agency will refer the case to the
      and generally stated that Tribes were                   authorizing direct IV–D funding for                   appropriate IV–D agency. There will be
      not States and should not be forced to                  Tribal programs limits the flexibility                instances in which States and Tribes
      function as States.                                     that can be established to permit Tribes              must work together to ensure families
         Response: We agree that the final                    to individually create program                        receive the support they deserve. Under
      regulation should accommodate the                       requirements. The authorization for                   these regulations Tribes are not
      unique status of Indian Tribes and                      direct Federal IV–D funding of Indian                 permitted to refuse services to any
      incorporate as much flexibility as                      Tribes requires that Tribes demonstrate               applicant. Taking all applications,
      possible while ensuring effective and                   to the satisfaction of the Secretary a                determining what services are needed or
      efficient Tribal IV–D programs. In                      capacity for accomplishing specific IV–               may be provided and providing those
      particular, we emphasize that one of the                D objectives. We have determined that                 services either directly or through
      key underlying principles of these final                every element specified at § 309.65(a) is             another IV–D agency are activities that
      Tribal IV–D regulations is recognition of               necessary to the operation of Tribal IV–              are included in categories of costs
      and respect for Tribal sovereignty and                  D programs capable of meeting the                     eligible for Federal reimbursement at
      the unique government-to-government                     objectives enumerated in the statute.                 the appropriate funding rate. We require
      relationship between Indian Tribes and                     Section 309.65(a)(2) requires evidence             that all IV–D programs accept all
      the Federal government. We have                         that a Tribe or Tribal organization has               applications so that families receive
      determined that the statute does not                    in place procedures for accepting all                 assistance in reaching the appropriate
      mandate that requirements imposed on                    applications for IV–D services and                    IV–D program and no family is denied
      Tribal IV–D programs be the same as                     providing IV–D services as required by                services which are legally available.
      those imposed on State IV–D programs                    law and regulation. A Tribe, when                        Tribes may not merely refer someone
      as prerequisites for funding. Moreover,                 describing the population subject to its              to another IV–D agency without
      there is nothing to suggest either in the               laws, may include geographical                        accepting an application because
      original authorization for Tribal IV–D                  descriptions of the area over which such              everyone needs to be served. However,
      programs or in a subsequent                             authority is exercised. However, as                   we recognize that as Tribal IV–D
      amendment, that Congress intended to                    noted above, Tribal IV–D programs must                programs begin to operate, States and
      limit the Secretary’s rulemaking                        take all applications and open cases for              Tribes may need to work out
      discretion to the rules already                         each application, and there may be                    cooperative agreements to deal with
      established for State IV–D programs.                    instances in which the appropriate                    cases in specific instances, e.g., a Tribe
      While Tribal IV–D programs must                         services will be to request assistance                has authority to provide certain services


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      while only a State IV–D agency may                      are in place and is not meant to suggest              failure to meet program requirements
      provide others. We will provide                         that Tribes do not provide due process.               will drive away a lot of Tribes.
      guidance governing referral of cases in                 Requiring this assurance is not                          Response: The proposed rule did not
      specific instances, as needed.                          indicative of a judgment as to whether                impose a performance-based incentive
         14. Comment: One State commenter                     a Tribe’s due process is adequate. While              or penalty system for Tribal IV–D
      recommended that we provide Federal                     we do not define for Tribes what due                  grantees and we have not imposed such
      guidance to ensure that an individual                   process is, we have determined that all               systems in this final regulation. Tribal
      does not apply for IV–D services at both                IV–D programs should have due process                 IV–D plans must include performance
      the local State IV–D program office and                 protections in place and we require an                targets, but funding is not contingent
      the Tribal IV–D program office. The                     assurance to that effect.                             upon the targets being met. In the
      commenter suggested that this portion                      17. Comment: Three Tribal                          statistical and narrative reports required
      of the rule be rewritten to clarify that                commenters stated that because the                    under § 309.170, grantees must report
      services by a Tribal IV–D program can                   statute does not require it, OCSE may                 on their success in reaching their
      only be provided to an individual who                   only suggest that a Tribe include                     performance targets. We are not setting
      is not receiving services from a State IV–              performance targets in its plan. Another              performance targets because we believe
      D program.                                              Tribal commenter stated that some                     that Tribes are in the best position to set
         Response: There is nothing to                        Tribes do not utilize standard                        performance targets in the initial years
      preclude an individual from applying                    performance measurements and that                     of the Tribal IV–D program and to
      for and receiving services from more                    measuring success by numerical or                     estimate the targets that they can
      than one IV–D agency. The fact that a                   monetary targets does not allow for                   reasonably attain. Tribal IV–D
      custodial parent and child may reside                   intangible successes to be taken into                 performance targets have no effect on
      within a Tribe’s jurisdiction while the                 account (such as family reconciliation.)              State IV–D programs.
      noncustodial parent may reside or work                     Response: The Federal statute
      within a State’s jurisdiction highlights                specifically authorizes the Secretary to              Sections 309.16 and § 309.65(b)—Start-
      the importance of Tribal-State                          establish requirements which must be                  Up Funding
      communication and coordination. We                      met in order to be eligible for funding                  1. Comment: Thirteen Tribal
      encourage States and Tribes to work                     under title IV–D. We have determined                  commenters stated that a two-year start-
      together to provide needed services and                 that in order to fulfill our responsibility           up time frame is not sufficient. Some
      coordinate those services.                              to ensure the effective and efficient                 suggested that extensions be permitted.
         15. Comment: One State commenter                     administration of Federally-assisted                     Response: We were persuaded by
      asked if the Tribal IV–D program must                   Tribal child support enforcement                      commenters to re-evaluate the
      charge an application fee as is required                programs, it is essential that Tribes and             regulatory framework for start-up
      of State programs.                                      Tribal organizations consider and                     funding and have added a new § 309.16
         Response: Application fees are not                   articulate performance targets or goals               to reflect provisions related to
      required of Tribal IV–D programs at this                for their programs. In response to                    applications and approval of start-up
      time. However, Tribes may, at their                     comments, we have revised                             funding. Section 309.16(a) lays out the
      option, provide that an application fee                 § 309.65(a)(14) to clearly reflect that the           requirements for an application for start-
      will be charged to individuals who                      performance targets should be based on                up funding including the standard
      apply for services under the Tribal IV–                 the particular needs and circumstances                application forms SF 424, ‘‘Application
      D plan (with stated exceptions). We                     of Tribal IV–D programs. In addition to               for Federal Assistance’’, and SF 424A,
      have added paragraph (e) to § 309.75,                   submission of targets for paternity and               ‘‘Budget Information—Non-
      governing administrative and                            support order establishments, targets on              Construction Programs’’, a quarter-by-
      management procedures, which reflects                   total amount of current collections, and              quarter estimate of expenditures for the
      this option and which provides that any                 targets on total amount of past due                   start-up period, notification of whether
      application fee charged must be                         collections, we encourage Tribes and                  the Tribe or Tribal organization is
      uniformly applied, be a flat amount not                 Tribal organizations to include Tribally-             requesting funds for indirect costs and
      to exceed $25.00, or be an amount based                 defined measures of success that go                   an election of a method to calculate
      on a fee schedule not to exceed $25.00.                 beyond numerical or monetary                          estimated indirect costs, and a narrative
      This is the same cap placed on State IV–                description. These optional measures                  justification for each cost category on
      D programs.                                             could include, for example, family                    the form. If the Tribe or Tribal
         16. Comment: One Tribal commenter                    reconciliation or other indications of                organization requests funding for
      stated that it was unclear what ‘‘due                   improved quality of life for Indian                   indirect costs as part of the application
      process’’ means in § 309.65(a)(3). This                 families. We believe that performance                 for start-up funds, estimated costs may
      language offended another Tribal                        targets are essential for ensuring that               be submitted either by a documentation
      commenter who stated that Tribes                        Tribes focus on maintaining efficient                 of the dollar amount of indirect costs
      provide due process. Two other Tribal                   and effective child support services                  allocable to the IV–D program,
      commenters stated that assuring due                     because such targets assist us and Tribes             including the methodology used to
      process is not a requirement of the                     in ensuring that Tribal IV–D programs                 arrive at the amounts, or submission of
      statute and should be removed.                          can increase their efficiency and                     the current indirect costs rate negotiated
         Response: The term ‘‘due process’’ in                effectiveness over time.                              with the Department of the Interior and
      the context of § 309.65(a)(3) refers to                    18. Comment: One Tribal commenter                  a dollar amount of estimated indirect
      legal proceedings according to rules and                objected to the imposition of a                       costs. The amount of indirect costs must
      principles which have been established                  performance-based incentive and                       be included within the $500,000 limit
      by the Tribe or Tribal organization for                 penalty system for Tribal grantees.                   for start-up funds. The Tribe or Tribal
      the protection and enforcement of                       Another asked if we were proposing to                 organization must also submit a
      individual rights. The required                         withhold sanctions from Tribal and                    description of the requirements a Tribe
      statement of assurance is intended to                   State programs while performance                      currently meets and, if the Tribe does
      ensure that the procedural and                          standards are sorted out and one                      not currently meet the requirements in
      substantive protections of individuals                  commenter said that heavy penalties for               § 309.65(a), a program development


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      plan detailing actions to be taken to                   While a few of the commenters thought                 Section 309.70—What Provisions
      meet the Tribal plan requirements.                      that the requirements for enforcement                 Governing Jurisdiction Must a Tribe or
      Section 309.16(c) describes under what                  services should be the same for Tribes                Tribal Organization Include in a Tribal
      circumstances the Secretary may                         as for States, the majority of the                    IV–D Plan?
      consider extending the period of time                   commenters recommended eliminating                       1. Comment: Seven Tribal
      during which start-up funding will be                   § 309.65(d). Most expressed concern                   commenters supported the fact that the
      available or increasing the amount of                   about how Tribes will access the                      regulation did not address jurisdiction.
      start-up funding provided. An                           Federal automated systems. They also                  Several State commenters stated that
      unfavorable decision to extend the                      stated that if Tribes are mandated to                 jurisdiction is not adequately addressed
      period of time during which start-up                    enter into cooperative agreements with
                                                                                                                    in the regulation and that guidance is
      funding is available or to increase the                 States to access these systems, it would
                                                                                                                    needed.
      amount of start-up funding provided is                  infringe on Tribal sovereignty.                          Response: Jurisdiction is the legal
      not subject to an administrative appeal.                  Response: Based on comments, we are
                                                                                                                    authority which a court or
         Based on the experience of Tribes of                 persuaded that it is not appropriate at
                                                                                                                    administrative agency has over
      varying sizes and circumstances that are                this time to impose future requirements
      currently operating IV–D programs, we                   for additional procedures which Tribes                particular persons and over certain
      believe that the amount of time                         and Tribal organizations must                         types of cases. Issues related to
      specified at § 309.16(a)(5) will provide                implement within two years after the                  jurisdiction are central to
      Tribes and Tribal organizations with                    Secretary issues guidelines for these                 intergovernmental cooperation for the
      reasonable and necessary support to                     requirements. These requirements were                 provision of child support enforcement
      complete the start-up phase necessary                   removed from the final rule. If, after                services to families. Without proper
      for comprehensive child support                         experience and consultation, additional               jurisdiction, a tribunal cannot proceed
      enforcement programs. However, in                       regulations become necessary, we will                 to establish, enforce, or modify a
      extraordinary circumstances, we will                    propose rules at that time. Some of the               support order or determine paternity.
      consider extending the period of time                   advanced child support enforcement                    The legal authority to undertake these
      during which start-up funding will be                   techniques require a minimal level of                 functions is essential to the ability of
      available to a Tribe or Tribal                          automation, and it would not be                       both State and Tribal child support
      organization or increasing the amount of                appropriate to mandate the phase-in of                enforcement programs to meet the
      start-up funding provided.                              such techniques in advance of                         statutory objectives of title IV–D of the
         2. Comment: One commenter stated                     understanding more clearly the issues                 Social Security Act. Lack of jurisdiction
      that ‘‘demonstrate satisfactory progress’’              related to Tribal IV–D automation. We                 does not excuse a Tribal IV–D program
      towards a fully operational Tribal IV–D                 have begun consideration of appropriate               from the responsibility of providing
      program in proposed § 309.65(c) is                      minimum Tribal systems automation                     services when asked, including seeking
      vague and suggested that it be more                     specifications with stakeholders.                     assistance from another IV–D program.
      clearly defined.                                                                                              Section 309.75—What Administrative
         Response: The language at proposed                   Section 309.65(e)—Certification of
                                                              Compliance With the 100-Child                         and Management Procedures Must a
      § 309.65(c) has been reworded and                                                                             Tribe or Tribal Organization Include in
      moved to 309.16(a)(5) for clarity. Under                Minimum Requirement
                                                                                                                    a Tribal IV–D Plan?
      § 309.16(a)(5), Tribes must develop a                     1. Comment: One commenter
      program development plan which                          suggested the requirement to certify                     1. Comment: One commenter
      demonstrates to the satisfaction of the                 compliance with the 100-child                         suggested that the word ‘‘promptly’’
      Secretary that the Tribe or Tribal                      minimum be deleted except for initial                 should be replaced with a 20-calendar
      organization will have a IV–D program                   applications or when a member Tribe                   day time frame for opening a case as
      meeting the requirements of § 309.65(a)                 drops out of a consortium.                            required for State IV–D agencies by 45
      within a specific period of time, not to                  Response: One of the basic eligibility              CFR 303.2(b).
      exceed two years. In order to                           requirements—that a Tribe is eligible to                 Response: We disagree that it is
      demonstrate satisfactory progress                       apply for funding if it has at least 100              necessary at this time to require a
      toward a fully-operational Tribal IV–D                  children under the age of majority in the             specific time frame for opening a Tribal
      program, a Tribe would have to show it                  population subject to its jurisdiction is             IV–D case. We are satisfied that
      is meeting specific goals established in                found at § 309.10(a). This requirement                § 309.65(a)(2) is sufficient to ensure that
      the program development plan within                     may be subject to a waiver under                      all applications for IV–D services are
      the timeframes established in the plan.                 § 309.10(c). We deleted the language                  accepted and acted upon. We expect
      In response to comments, we have                        from proposed § 309.65(e) and moved it                that all applications for Tribal IV–D
      revised § 309.65(b) to make clear that                  to § 309.70. The Tribe must certify that              services will be acted upon in a prompt
      the Secretary may terminate start-up                    there are at least 100 children under the             and efficient manner. A Tribal IV–D
      funding if the Tribe or Tribal                          age of majority in the population subject             agency must open a case for each
      organization fails to satisfy any                       to its jurisdiction. The requirement that             application. In some of these cases, the
      provision or milestone described in its                 a consortium demonstrate authorization                proper action will be to refer the case for
      program development plan within the                     of two or more Indian Tribes with at                  enforcement by a State or another Tribe
      timeframe specified in the plan. A                      least 100 children under the age of                   with access to enforcement tools the
      decision to terminate start-up funding is               majority subject to its jurisdiction                  Tribe may not access directly, e.g. State
      not subject to administrative appeal.                   remains applicable even if a member of                income tax refund offset; in others it
                                                              the consortium drops out. If, during the              will be to refer the case to a State or
      Section 309.65(d)—Delayed Program                       funding cycle, a member of a                          another Tribe because the Tribe has no
      Requirements                                            consortium drops out, the assurance                   jurisdiction over the parties. We have
        1. Comment: Thirty-nine Tribal and                    that the consortium will continue to                  eliminated the language originally
      State comments were received on this                    serve at least 100 children must be                   proposed in § 309.75(c) related to
      section that outlined future                            resolved by the beginning of the next                 opening IV–D cases since it was
      requirements for Tribal IV–D programs.                  funding cycle.                                        duplicative of language in § 309.65(a)(2).


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         2. Comment: One Tribal commenter                     receiving services under the Tribal IV–               want to make their enrollment records
      suggested deleting the requirement for                  D program at least once a year. This is               accessible. Another Tribal commenter
      bonding in paragraph (d), as most Tribes                less cumbersome than a requirement to                 did not like the proposed requirement
      are not able to afford bonding. Nine                    provide notices on a monthly basis. In                in § 309.65(d) and related safeguarding
      other Tribal commenters suggested                       addition to the annual notice, a notice               requirements in § 309.80(b) that the
      eliminating the language at paragraph                   must be provided at any time to either                Tribal IV–D agency will have to report
      (d)(3) under which the requirements of                  the custodial or noncustodial parent                  new hires to States, which in turn
      this section do not reduce or limit the                 upon request. In this way families will               would report them to the National
      ultimate liability of the Tribe or Tribal               receive regular notices of collections                Directory of New Hires (NDNH).
      organization for losses of support                      made on their behalf.                                    Response: These final regulations do
      collections from the Tribal IV–D                          4. Comment: One commenter                           not require Tribes to submit any
      agency’s program because it implies the                 recommended that we require that for                  information to a national or State
      Tribe has liability and it could be                     each of the first three program years, the            database and there is nothing in this
      construed as a waiver of Tribal                         Tribe should obtain an evaluation every               final rule that requires Tribes to provide
      sovereignty.                                            six months as well as a yearly external               enrollment records to any entity. The
         Response: We reviewed the proposed                   evaluation.                                           requirement at § 309.80(b) is necessary
      requirement for the bonding of                            Response: We have not imposed these                 because Tribes may receive information
      employees in light of Tribal comments                   additional evaluation requirements on                 from Federal sources including the
      that such a requirement would cause                     Tribes in these final regulations. We                 NDNH from States as well as
      financial hardship. In response to the                  have determined that the required                     information about state cases and must
      concerns raised, we have revised                        audits under § 309.75(d) and the                      meet Federal statutory and regulatory
      § 309.75(b) so that taking out a bond is                authority to conduct Federal audits as                confidentiality requirements. In
      not the only means of satisfying the                    the need arises are sufficient to ensure              response to comments, the requirements
      requirement for protection against loss.                accountability and additional                         at proposed § 309.65(d) were
      Under the revised provision, Tribal IV–                 evaluations are not necessary.                        eliminated.
      D programs must submit documentation                                                                             3. Comment: One State commenter
                                                              Section 309.80—What Safeguarding
      that establishes that every person who                                                                        stated that Tribes have no authority to
                                                              Procedures Must a Tribe or Tribal
      receives, disburses, handles, or has                                                                          access the FPLS or other Federal
                                                              Organization Include in a Tribal IV–D
      access or control over funds collected                                                                        databases to locate individuals for IV–D
                                                              Plan?
      under the Tribal IV–D program is                                                                              purposes. Another State commenter
      covered by either a bond or insurance                      1. Comment: One Tribal commenter                   stated that if Tribes have direct access
      sufficient to cover all losses. Because                 stated that because the statute does not              to statewide systems, confidentiality
      the bond or insurance will cover all                    require it, OCSE may only suggest that                would be a concern.
      losses, it is not necessary to address                  the Tribal IV–D plan include                             Response: Tribes are legally
      liability. In addition, we have                         safeguarding information in its plan.                 precluded from direct access to the
      eliminated as unnecessary the language                  Another commenter stated that it is                   FPLS. However, they could receive
      in former § 309.75(d)(3) related to the                 critical for Tribal grantees to describe              FPLS data from a State in an
      ultimate liability of Tribes.                           safeguarding procedures.                              intergovernmental case. The technical
         3. Comment: One Tribal commenter                        Response: We disagree that because                 requirements for access to the FPLS will
      objected to the requirement at proposed                 the statute does not explicitly direct the            be the subject of future guidelines and
      paragraph (e) to provide notice of all                  Secretary to establish safeguarding                   program instructions. All IV–D case
      support collections to families and                     regulations, that the Secretary may not               record information is confidential,
      noted that States only have to provide                  do so. As we noted above, the statute                 whether a State or Tribal IV–D program
      notice of assigned support. The                         explicitly delegates to the Secretary the             maintains it and both entities are
      proposed requirement is more stringent.                 authority to promulgate regulations                   required to treat the information as
      Another Tribal commenter stated that                    ‘‘establishing the requirements which                 confidential and are bound by
      until a Tribe has a sophisticated                       must be met by an Indian Tribe or Tribal              safeguarding requirements. State and
      computer system to track individual                     organization to be eligible’’ for funding             Tribal safeguarding requirements are not
      accounts, providing a notice will be                    under title IV–D. We have determined                  in conflict. If Tribes and States enter
      time-consuming and the agency should                    that safeguarding confidential                        into agreements for reciprocal access to
      provide such information only on                        information is critical to individual                 each other’s databases for location or
      request.                                                rights to privacy as well as to effective             other child support purposes, such
         Response: As indicated earlier in this               Tribal child support programs, and that               agreements must not conflict with
      preamble, we have determined that all                   implementation of safeguarding                        Federal safeguarding and other
      regulations applicable to State IV–D                    procedures is necessary to meet IV–D                  regulations and must comply with the
      programs need not apply to Tribal IV–                   program objectives and to ensure that                 Internal Revenue Service (IRS) rules
      D programs. State IV–D programs are                     data and information received from                    governing the disclosure of tax return
      required to provide monthly notice of                   State IV–D programs are safeguarded in                information.
      support payments for each month to                      accordance with statutory and                            4. Comment: One commenter asked
      individuals who have assigned their                     regulatory requirements. Therefore, we                who would be prosecuted if a State
      rights of support to the IV–A agency.                   require minimum but critical                          contracts with a Tribe and a violation of
      However, we believe that notices of                     safeguarding procedures at § 309.80 to                confidentiality of IRS material occurs.
      support collections should be provided                  ensure that confidential information is               The commenter suggested that States
      to all families receiving services from                 protected from improper disclosure.                   have hold harmless regulations
      the program. In order to recognize the                     2. Comment: Two Tribal commenters                  regarding release from liability of
      level of automation currently available                 indicated concern about confidential                  prosecution.
      to Tribal IV–D programs, we have                        information on Tribal members going                      Response: Current Federal law does
      revised § 309.75(c) to require that notice              into a national database system that will             not allow a State to release tax
      of collections be provided to families                  be shared with States. Tribes do not                  information to a Tribal IV–D agency.


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      When an entity directly receives tax                    favorably to the provision allowing                   that valid withholding orders are
      return information from the IRS, it has                 Tribes to use their own laws, traditions              promptly served.
      the legal responsibility to safeguard                   and customs.
                                                                 Response: There is no legal authority              Section 309.95—What Procedures
      such information. Any agreement
                                                              to impose a requirement that States                   Governing the Location of Noncustodial
      negotiated between a Tribe and a State
                                                              approve Tribal laws. This would be a                  Parents Must a Tribe or Tribal
      must address safeguarding and comply
                                                              clear infringement on Tribal                          Organization Include in a Tribal IV–D
      with all applicable Federal law and
                                                              sovereignty.                                          Plan?
      regulations.
                                                                 2. Comment: One Tribal commenter                     We received no comments on this
      Section 309.85—What Records Must a                      noted that not all Tribal codes are                   section.
      Tribe or Tribal Organization Agree To                   written and it would be difficult to
      Maintain in a Tribal IV–D Plan?                                                                               Section 309.100—What Procedures for
                                                              submit that kind of code or law.
         1. Comment: One State commenter                                                                            the Establishment of Paternity Must a
                                                              Another commenter appreciated the fact
      stated that the regulations do not                                                                            Tribe or Tribal Organization Include in
                                                              that the rule recognized that not all
      address reporting of collections made by                Tribes have written codes.                            a Tribal IV–D Plan?
      States on behalf of families who are                       Response: Should a Tribe with                         1. Comment: Eight Tribal commenters
      receiving Tribal IV–A assistance.                       unwritten codes and laws apply for                    raised concerns about the effect of
         Response: State reporting                            direct funding, these final regulations               paternity establishment on Tribal
      requirements are not addressed in this                  require a detailed description of such                enrollment and membership. Seven of
      regulation. Information about any                       codes and laws in its application. We                 these commented that OCSE should not
      collection received by a Tribal IV–D                    recognize in this regulation that one of              interfere with the authority of Tribal
      program from a State IV–D program                       the unique characteristics of Indian                  governments, Tribal enrollment
      must be included in the Tribal IV–D                     Tribes is that some do not have written               committees and Tribal religious leaders
      program’s records under § 309.85(a)(4)                  laws and codes, even though they have                 in establishing paternity. They stated
      and must be reported under § 309.170.                   long-standing and rich legal traditions.              that determining paternity through
         2. Comment: We received five State                   We have added a definition of ‘‘Tribal                foreign regulations would totally disrupt
      comments suggesting that Tribal IV–D                    custom’’ at § 309.05 to make clear that               the way they deal with issues and they
      programs use all the standard Federal                   this term is not open-ended, but means                want to incorporate traditional lifestyle
      forms that State IV–D programs use.                     unwritten law that has the force and                  into child support enforcement
         Response: State IV–D programs have                   effect of law. Section 309.90(b) permits              programs through Tribal courts. Four
      been in operation for almost 30 years                   Tribes without written laws to submit                 commenters supported the provisions
      and are required to use a variety of                    detailed descriptions of Tribal common                allowing Tribal discretion in how
      standard Federal forms. The                             law as evidence that procedures                       paternity is established.
      requirements related to these standard                  required by § 309.90(a) are in place.                    Response: In response to concerns
      forms have evolved over time and some                   Even though Tribal custom is unwritten,               raised by commenters we have added
      of them were developed or amended                       it is nonetheless capable of being known              § 309.100(d) to make clear that
      recently. At this initial stage in the                  and may be shown in several ways: it                  establishment of paternity under this
      development of Tribal IV–D programs,                    may be shown through recorded                         regulation does not affect Tribal
      we have determined that it is not                       opinions and decisions of Tribal courts;              enrollment or membership. Section
      reasonable to mandate that Tribes use                   it may be judicially noticed; or it may               309.100(a)(1) provides for paternity to
      all the same forms as States. Whether or                be established by testimony of expert                 be established in accordance with Tribal
      not a particular standard Federal form                  witnesses who have substantial                        law, code, or custom. These regulations
      should be required of Tribal IV–D                       knowledge of Tribal common law in an                  are not intended to override established
      programs depends on whether the use of                  area relevant to the issue before the                 Tribal authority.
      such form is essential to the effective                 Tribe.                                                   2. Comment: One Tribal commenter
      and efficient administration of Tribal                     3. Comment: One State commenter                    suggested that States be required to give
      child support enforcement programs.                     suggested that the language at § 309.90               full faith and credit to any legal
      We disagree that Tribes should be                       be amended to require Tribal employers                determination of paternity considered
      required to use every standard Federal                  to comply with an income withholding                  final by a Tribal court.
      form that States currently use,                         order of another Tribe or State.                         Response: Under the State-enacted
      especially since many of the forms were                    Response: We have not amended                      UIFSA statutes and FFCCSOA, States
      designed for automated case processing.                 § 309.90 as suggested because Tribes are              are required to honor Tribal paternity
      Section 309.110 requires that Tribes use                not required to adopt the Uniform                     orders when they are the basis for child
      the standard income withholding                         Interstate Family Support Act (UIFSA)                 support orders pursuant to Tribal law,
      notice, because we have determined that                 as all States were required to do. UIFSA              in the same manner that a Tribe is
      the standard use of this form by all IV–                compels a State employer to honor a                   compelled to honor States’ paternity
      D programs is necessary for the effective               withholding order sent directly from                  orders when they are the basis for child
      and efficient enforcement of support                    another State or Indian Tribe. However,               support orders. We have determined
      orders.                                                 the Full Faith and Credit for Child                   that it is not necessary to further
                                                              Support Orders Act (FFCCSOA) requires                 regulate in this area.
      Section 309.90—What Governing Tribal                    both Tribes and States to enforce valid                  3. Comment: One State commenter
      Law or Regulations Must a Tribe or                      child support orders. Where State or                  suggested that parents should have the
      Tribal Organization Include in a Tribal                 Tribal orders referred to a Tribal IV–D               option to request genetic testing.
      IV–D Plan?                                              program include provision for income                     Response: We are persuaded that
        1. Comment: One State commenter                       withholding, such orders must be                      genetic testing should be provided upon
      noted that Tribal laws should be used in                enforced by Tribal IV–D agencies as                   request and have added § 309.100(a)(3)
      administering Tribal programs, but                      required by FFCCSOA. Please note that                 to require the Tribal IV–D plan to
      States should approve the Tribal laws.                  § 309.110 provides that Tribal IV–D                   provide procedures under which the
      Three Tribal commenters responded                       agencies are responsible for ensuring                 Tribal IV–D agency is required, in a


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      contested paternity case (unless                        it is not necessary to mandate further                child support guideline could allow the
      otherwise barred by Tribal law), to                     paternity establishment procedures.                   Tribal court to change or ignore a State’s
      require the child and all other parties to              States and Tribes are required to                     order, and competing orders could
      submit to genetic tests upon the request                recognize and honor valid                             result. The need for UIFSA is apparent.
      of any such party, if the request is                    determinations of paternity.                             Response: The commenter fails to take
      supported by a sworn statement by the                      5. Comment: One commenter said that                into account that Federal law requires
      party alleging paternity, and setting                   the voluntary paternity requirement                   all tribunals to give full faith and credit
      forth facts establishing a reasonable                   does not go far enough. Voluntary                     to valid child support orders. FFCCSOA
      possibility of the requisite sexual                     paternity acknowledgement services                    requires tribunals of all United States
      contact between parties; or denying                     should operate in all birthing hospitals              territories, States and Tribes to give full
      paternity, and setting forth facts                      located under the Tribe’s jurisdiction.               faith and credit to a child support order
      establishing a reasonable possibility of                   Response: This rule is flexible enough             issued by another State or Tribe that
      the nonexistence of sexual contact                      to allow voluntary acknowledgement of                 properly exercised jurisdiction over the
      between the parties. As stated in an                    paternity at birthing hospitals as                    parties and the subject matter. A Tribe
      earlier section of the preamble, the                    determined appropriate by Tribes. This                may not modify an order valid under
      phrase ‘‘otherwise barred by Tribal law’’               practice has proven to be highly                      FFCCSOA except in certain
      is intended to cover situations where,                  effective for States and has resulted in              circumstances, nor may valid orders be
      either by action of one or both of the                  a record number of paternity                          modified under these regulations in any
      parties or the application of Tribal law,               acknowledgements.                                     manner that is inconsistent with that
      or both, paternity has already been                        6. Comment: Four commenters said                   Federal law. The grounds for
      conclusively determined and may not                     that the requirement at § 309.100(b)                  modification under FFCCSOA are
      be reconsidered. In such cases, genetic                 should be omitted, and Tribes should                  consistent with UIFSA.
      testing to challenge the paternity                      determine the exceptions to require                      3. Comment: One State commenter
      determination would not be authorized.                  paternity establishment actions and the               suggested we include requirements
      Examples of such a paternity                            appropriate entity to make exceptions.                regarding modifications, since States
      determination would include a                              Response: We believe the language at               have very specific requirements relating
      voluntary admission of paternity or                     § 309.100(b) accommodates the needs of                to review and adjustment, and periodic
      circumstances under which the Tribe                     Tribes to determine exceptions to                     modification ensures child support
      has other means of recognizing paternity                paternity establishment and allows                    obligation amounts are appropriate over
      under Tribal law. A Tribe, through its                  Tribes to establish the appropriate entity            time.
      own custom, tradition or procedure,                     to make those determinations.                            Response: These regulations specify
      may recognize a man as the father or                                                                          that guidelines apply to both setting and
                                                              Section 309.105—What Procedures                       modifying orders. We believe that
      may preclude a man who holds himself                    Governing Child Support Guidelines
      out to be the father from challenging                                                                         § 309.105(a)(4) sufficiently addresses the
                                                              Must a Tribe or Tribal Organization                   commenter’s concerns that periodic
      paternity. Similarly, a Tribe may have a                Include in a Tribal IV–D Plan?
      conclusive presumption of paternity                                                                           modification ensures child support
      when a child is born to married parents                    1. Comment: Three Tribal                           obligation amounts are appropriate over
      or if a noncustodial parent has been                    commenters suggested that child                       time and do not believe that additional
      validly served in a paternity proceeding                support guidelines are not required. One              regulation is called for at this time.
      and failed to contest paternity in such                 also suggested that the requirements go                  4. Comment: Numerous State
      proceeding. A uniquely Tribal means                     beyond what Congress intended and                     commenters stated that they did not
      under Tribal law that was used to                       interfere with Tribal sovereignty.                    have a clear understanding of the in-
      establish paternity would be acceptable                    Response: We disagree that because                 kind concept as it related to support
      as precluding the need for genetic tests.               the statute does not explicitly direct the            obligations, while numerous Tribal
      In such cases, because paternity had                    Secretary to establish specific minimum               commenters responded positively to the
      already been determined, genetic testing                requirements for support guidelines,                  recognition that Tribal support orders
      would be ‘‘otherwise barred by Tribal                   that the Secretary may not do so. As we               could be satisfied with cash and non-
      law’’. This language is consistent with                 note above, the statute explicitly                    cash resources.
      the language found at section                           delegates to the Secretary the authority                 Response: We were urged by Tribes to
      466(a)(5)(B) of the Act, which mandates                 to promulgate regulations ‘‘establishing              accommodate the reality of Tribal
      genetic testing in contested cases to                   the requirements which must be met by                 economies by recognizing that
      ensure that the rights of both parties are              an Indian Tribe or Tribal organization to             noncustodial parents could satisfy
      protected.                                              be eligible’’ for funding under title IV–             support obligations with non-cash (in-
         4. Comment: One commenter stated                     D. Although guidelines are not                        kind) support in addition to cash
      that the due process rights of                          specifically addressed in the statute,                payments. Many reservations and
      individuals must be protected. States                   establishment of support orders is one                Indian communities are located in
      should give full faith and credit to                    of the mandatory program objectives,                  remote areas with little or no industry
      paternity determinations made by Tribal                 and we have determined that § 309.105                 or business; thus, there are limited
      law/ordinance but not to processes that                 requirements are critical to establishing             opportunities for cash employment. We
      result in a person with whom the                        fair and consistent support orders.                   were persuaded by Tribes to
      mother has had no relation (either                      Implementation of the requirements                    accommodate the long-standing
      sexual or marriage) being established as                specified at § 309.105 is necessary to                recognition among Indian Tribes that all
      the legal father.                                       satisfy the statutory IV–D program                    resources that contribute to the support
         Response: The regulations at                         objective of establishing child support               of children should be recognized and
      § 309.65(a)(3) require due process                      orders, and we believe such                           valued by IV–D programs.
      assurances and § 309.100(a)(1) makes                    requirements respect Tribal sovereignty.                 In-kind (non-cash) support is support
      clear that such assurances encompass                       2. Comment: One State commenter                    provided to a family in the nature of
      paternity establishment. In light of these              stated that because there is no                       goods and/or services rather than in
      requirements, we have determined that                   requirement to enact UIFSA, a Tribal                  cash, but which nonetheless has a


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      certain and specific dollar value. Non-                 include both the specific dollar amount                  Permitting Tribal support orders to
      cash support for purposes of this                       of the obligation and the types of non-               specify that support obligations may be
      regulation is support that directly                     cash support which may be provided to                 satisfied with non-cash resources is an
      contributes to the needs of a child. Non-               meet the obligation.                                  important recognition of the economic
      cash support may include services such                     We are not persuaded that the                      conditions of Indian Tribes and of the
      as making repairs to automobiles or a                   accommodation of non-cash resources                   subsistence economies prevalent
      home, the clearing or upkeep of                         should be limited to current support                  throughout much of Tribal territory. In
      property, providing a means for travel,                 obligations only. Arrears, like current               addition, it recognizes that noncustodial
      or providing needed resources for a                     support, are specific dollar amounts.                 parents without significant cash
      child’s participation in Tribal customs                 Since each non-cash payment will have                 resources may nonetheless satisfy
      and practices.                                          an associated dollar value attached to it,            support obligations and make
        In § 309.105(a)(3), we allow Tribal                   it can be credited toward arrears as well             productive contributions to their
      child support guidelines to permit                      as current support obligations. However,              children’s lives.
      support obligations to be satisfied with                non-cash support cannot be used to                       7. Comment: One State commenter
      both cash and non-cash payments. The                    satisfy assigned support (including                   stated that in-kind orders are not
      regulations at § 309.105(a)(3) require                  arrears). This is consistent with the                 compatible with States’ automated
      that a support order which permits                      language added to § 309.105(a)(3)(iii).               systems.
      satisfaction with non-cash resources                                                                             Response: Tribal IV–D programs are
                                                                 6. Comment: We received nine
      must include, in the order itself, a                                                                          required under § 309.105(a)(3) to
                                                              positive comments from Tribes on the
      specific dollar amount reflecting the                                                                         include a specific dollar amount if
                                                              provision allowing non-cash (in-kind)
      amount of the support obligation. The                                                                         obligors are permitted to satisfy their
                                                              support payments. One State
      regulation allows individual Tribes to                                                                        support obligations with non-cash
                                                              commenter stated that determining the
      make the determination of whether non-                                                                        payments. Since every non-cash
                                                              amount of non-cash contributions that
      cash as well as cash payments can be                                                                          payment will have an associated
                                                              have been made on a newly opened
      accepted to satisfy the support order.                                                                        monetary value, each payment will be
                                                              enforcement case would be cumbersome
        Since all Tribal support orders will                                                                        reducible to a specific dollar amount,
                                                              and require intensive labor on the part
      include a specific dollar amount                                                                              which every automated system should
                                                              of the State.
      reflecting the support obligation, a                                                                          be able to handle just like any other
      specific monetary amount of a child                        Response: Permitting Tribal courts to              payment.
      support obligation is clear in every                    establish support orders which can be                    8. Comment: One Tribal commenter
      order. In this way Tribal orders contain                satisfied with non-cash payments is an                stated that there are many problems
      the same information as State orders do.                essential accommodation made to                       associated with valuing in-kind
      The only difference is that some Tribal                 recognize Tribal custom and                           payments which Tribes themselves
      orders may allow the support obligation                 circumstances. If a Tribal IV–D agency                should address; OCSE officials should
      to be satisfied with non-cash resources.                refers a case to a State IV–D agency for              not propose regulations in areas where
      Thus, States should be able to process                  enforcement, the Tribal IV–D agency                   they do not have a good understanding.
      support payments through their                          must provide information necessary to                    Response: Section 309.105(a)(3)
      automated systems and account for                       work the case, which would include the                requires Tribal support orders which
      support payments made under Tribal                      payment record under the order.                       permit non-cash payments to establish a
      orders. Other Tribes that receive                       Therefore, State IV–D agencies would                  specific dollar amount in the order
      requests for enforcement assistance                     not be required to determine non-cash                 itself. We agree that the valuation of
      where there is a support order which                    contributions made by the obligor. Non-               non-cash resources is the responsibility
      can be satisfied with non-cash resources                cash payments are merely one means by                 of Tribes themselves. The Tribe must
      should similarly be able to process such                which Tribal support orders may be                    establish standards for valuation of non-
      support payments.                                       satisfied. For example, a Tribal support              cash resources, should it choose to
        5. Comment: Five State commenters                     order could provide that an obligor                   permit non-cash payments to be used to
      suggested that the specific dollar                      owes $200 a month in current support                  satisfy support obligations.
      amount for non-cash support must be a                   and $100 a month for arrears which may                   9. Comment: Two State commenters
      part of the Tribal court order. One of                  be satisfied with the provision of                    suggested that we clarify how
      these suggested that satisfaction of                    firewood suitable for home heating and                assignments to offset public assistance
      support obligations with non-cash                       cooking to the custodial parent and                   to a State will be handled when the
      payments should be limited to current                   child. The order could provide that a                 noncustodial parent is making in-kind
      support only.                                           cord of firewood has a specific dollar                payments and suggested that where
        Response: We agree that support                       value of $100 based on the prevailing                 assignments are made to a State the
      orders must include specific dollar                     market. In this case, the obligor would               obligor must pay a cash equivalent
      amounts and that these amounts must                     satisfy his support obligation by                     specified within the Tribal order.
      be expressly reflected in the Tribal                    providing two cords of firewood every                    Response: Where non-cash payments
      order. Non-cash support merely                          month plus $100. Such ‘‘payments’’                    are permitted to satisfy support
      recognizes that an obligation for a                     would be credited as $300 paid every                  obligations, they are required to be
      specific dollar amount of child support                 month. Whenever non-cash payments                     represented as a specific dollar amount
      may be satisfied with non-cash                          are permitted, the specific dollar                    which can be credited just like any
      resources. We are persuaded that this is                amount will always be known (and be                   other child support payment. Where
      a critical accommodation for Tribal                     reflected in the order) and can be                    assignments of support rights are made
      subsistence economies. We have added                    credited and tracked. The language at                 to the State as a condition of receipt of
      language in § 309.105(a)(3) to ensure                   § 309.105(a)(3) has been amended to                   public assistance, any non-cash
      that Tribal support orders include                      indicate that should the Tribe decide                 payment made by the noncustodial
      specific dollar amounts. If non-cash                    that an non-cash order is acceptable, a               parent can be credited to the family as
      payments are permitted to satisfy Tribal                specific dollar amount must be set in                 a cash payment would be. As specified
      support orders, the support order must                  the order.                                            in § 309.105(a)(3)(iii), if there is an


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      assignment to the State or another Tribe,               we do not believe it is necessary to                  providing that the support order is
      the specific dollar amount must be paid.                require any additional finding in order               appropriate and just given the particular
         10. Comment: One commenter said                      to allow non-cash resources to be used                circumstances of the case. If a particular
      that the term ‘‘cash equivalents’’ has                  to satisfy a Tribal support order. As long            child is receiving direct payments, such
      subsistence and public assistance                       as the Tribal support order indicates the             payments may be taken into
      implications and may make the term                      specific dollar amount of the support                 consideration under these regulations.
      unworkable in Alaska. The term ‘‘cash                   obligation and the dollar amount of the                  16. Comment: One commenter
      alternatives’’ would be more acceptable.                non-cash resource, the support can be                 suggested that OCSE examine whether
         Response: We have revised the                        collected whether or not it is made in                there is a need to address Tribal
      regulation at § 309.105(a)(3) to eliminate              cash or non-cash resources. Allowing                  responsibility when a child support
      the phrase ‘‘cash equivalents’’ to clarify              non-cash support in Tribal IV–D                       order contains provisions for health care
      the meaning of terms and to eliminate                   programs recognizes Tribal tradition                  coverage.
      confusion.                                              and custom appropriate to Tribal IV–D                    Response: There is no requirement at
         11. Comment: Two State commenters                    programs and consistent with Tribal                   this time for Tribal support orders to
      suggested that the obligee be required to               sovereignty.                                          include medical support. However,
      provide a written receipt to the obligor                   We do not believe there is any equal               nothing in this regulation precludes a
      acknowledging a non-cash payment.                       protection risk associated with final                 Tribal order of support from including
         Response: If the Tribal IV–D program                 regulations permitting Tribal support                 separate provisions for medical support
      decides to permit non-cash resources to                 orders to be satisfied with non-cash                  and we encourage Tribes to make sure
      be used to satisfy a support order, the                 resources consistent with Tribal law and
      Tribe is responsible for recording                                                                            children have access to medical care
                                                              Tribal economies. Singling out Indian                 through IHS or otherwise. To the extent
      payments to ensure obligors receive                     Tribes for different regulations from
      credit for meeting their child support                                                                        that a Tribe is enforcing an order
                                                              States is constitutionally sound. The                 containing provisions for health care
      obligations. At this time, we do not                    United States Supreme Court has, on
      believe the alternatives suggested by the                                                                     coverage, such an order is entitled to
                                                              numerous occasions, upheld legislation                full faith and credit provided the
      commenters are necessary.                               and regulations that single out Indians
         12. Comment: One State commenter                                                                           underlying order is valid. Just like any
                                                              for particular and different treatment.               other valid order, Tribal and State
      suggested that we establish numeric and                    14. Comment: Two Tribal commenters
      descriptive guidelines for in-kind                                                                            support orders containing provisions for
                                                              said that basing support orders on the
      payments. If there is a deviation due to                                                                      health care coverage are enforceable
                                                              noncustodial parent’s ability to pay is
      in-kind support, the tribunal should                                                                          under FFCCSOA.
                                                              not a requirement of the statute. If a
      make a specific finding justifying                      parent cannot provide non-cash support                   17. Comment: We received comments
      departure from cash support and                         because he/she no longer has access to                from six Tribal respondents suggesting
      establishing that such departure is in                  the resource, the parents should return               that Tribes be required to review their
      the best interest of the child. The Tribal              to Tribal court to request that the order             guidelines every four, rather than three
      IV–D plan should specify how the                        be modified.                                          years.
      noncustodial parent receives credit for                    Response: We have determined that                     Response: We agree with the
      in-kind payment.                                        support guidelines that take into                     commenters. The language at
         Response: We have determined that                    account the earnings and income of the                § 309.105(a)(4) has been changed to
      § 309.105 adequately provides for                       noncustodial parent are essential to                  require review of support guidelines at
      consistent and predictable support                      effective IV–D programs. Where a                      least once every four years.
      guidelines which take into account the                  noncustodial parent is no longer able to                 18. Comment: One Tribal commenter
      needs of the child and are not                          provide non-cash support nor able to                  disagreed that the standard of ‘‘best
      persuaded that the suggestions of the                   satisfy the support obligation with cash              interest of the child’’ be imposed.
      commenter are necessary.                                payments, the Tribe’s procedures for                  Requiring the tribunal to make ‘‘a
         13. Comment: One State commenter                     modification of support orders may be                 finding’’ why the application of the
      stated that if a Tribe’s guidelines allow               applicable on a case-by-case basis. Non-              ‘‘guidelines’’ is unjust is more than
      in-kind credits, then it should be the                  cash support is not a substitute for                  sufficient.
      burden of the obligor to raise the issue                support; it is a means of providing                      Response: Proposed § 309.105(b)(1)
      and prove the entitlement to such                       support. If there is a change in                      and (e) used the term ‘‘needs of the
      credits. The in-kind support must                       circumstances such that the                           child’’ and ‘‘best interest of the child’’
      directly benefit the child. This same                   noncustodial parent may, under Tribal                 to reflect the requirement that the
      commenter stated that there is an issue                 law, seek modification of the support                 particular needs of the child be taken
      of equal protection.                                    order, the fact that non-cash support is              into consideration when support orders
         Response: As explained above,                        reflected in the order should not                     are established. We have maintained
      allowing Tribal orders to specify both a                contribute to any delay or pose any                   this language in final regulation as
      specific dollar amount of support due                   particular problem.                                   recodified. In order to ensure that
      and an equivalent non-cash resource                        15. Comment: One State commenter                   support orders in Tribal IV–D programs
      that can be used to satisfy the obligation              said that Federal child benefit programs              are just and appropriate, we require
      is an important accommodation for                       such as Social Security Retirement or                 there be a rebuttable presumption that
      Indian Tribes. Such an accommodation                    Social Security Disability provide for a              application of a Tribe’s support
      permits noncustodial parents who can                    benefit to be paid directly to the child              guidelines will result in a support order
      provide non-cash resources which are                    or guardian and that the regulations                  that is correct. In recognition of the
      needed by families to meet their child                  should address how these benefits will                possibility that particular circumstances
      support obligations even when they do                   affect the obligation of the noncustodial             may make application of the guidelines
      not have cash available to make cash                    parent.                                               unjust or inappropriate, we provide for
      payments. Section 309.105(b) requires                      Response: We believe that § 309.105                variance from such guidelines on a case-
      Tribal child support guidelines to take                 adequately ensures that the needs of the              by-case basis as long as the needs of the
      the needs of the child into account, and                child are taken into consideration while              child are taken into consideration.


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      Section 309.110—What Procedures                         defined income at § 309.05, to mean any               that if the section is not eliminated, the
      Governing Income Withholding Must a                     periodic form of payment due to an                    requirement should be made flexible, so
      Tribe or Tribal Organization Include in                 individual regardless of source, except               that Tribes may adapt income
      a Tribal IV–D Plan?                                     that the exclusion of per capita, trust or            withholding to their needs. Two other
         1. Comment: Eight Tribal commenters                  Individual Indian Money (IIM)                         Tribal commenters stated that Tribes
      suggested that the requirement for                      payments must be expressly decided by                 need to determine if income
      income withholding be eliminated                        a Tribe. This allows Tribes the                       withholding is appropriate for their
      because the statute does not require                    flexibility to exclude specific categories            populations.
                                                              of payments from this definition,                        Response: In response to the concerns
      income withholding. Two of these
                                                              including per capita payments, trust                  raised by commenters, we are persuaded
      commenters stated that Tribes need to
                                                              income, and gaming profit distributions.              that income withholding may not be
      determine if income withholding is
                                                              We have not required Tribes to                        appropriate in every circumstance.
      appropriate for their populations.                                                                            Many of the comments we received
         Response: Although income                            withhold the Tribal benefits (casino
                                                              profits, oil and mineral rights) of                   from Tribes indicated that other
      withholding requirements are not
                                                              obligors. We refer here to the businesses             methods of collecting support owed are
      specifically addressed in the statute,
                                                              owned by the Tribe and the profits                    more effective than income
      enforcement of support orders is                                                                              withholding. In some instances, the
                                                              thereof. In respect for Tribal
      specifically required and we have                                                                             noncustodial parent is brought before
                                                              sovereignty, we have determined that it
      determined that regulations governing                                                                         Tribal elders and asked to explain why
                                                              is not appropriate in this regulation to
      income withholding are necessary to                                                                           child support payments are not being
                                                              directly affect Tribal management of
      address this important IV–D program                                                                           made. This may be enough to get the
                                                              Tribes’ own resources.
      objective.                                                 With respect to concerns about the                 noncustodial parent to make payments.
         Income withholding has been one of                   CCPA limits, Tribes have the discretion               Therefore, we added language to
      the most effective means of collecting                  to set lower income withholding limits                § 309.110 providing flexibility in this
      child support from parents who receive                  than the CCPA. These rules only                       area. Section 309.110(h) allows for
      regular income and is especially                        preclude income withholding beyond                    exceptions to income withholding on a
      important to ensure that the                            the upper limits set forth in the CCPA.               case-by-case basis if: (1) Either the
      noncustodial parent does not fall into                     3. Comment: One Tribal commenter                   custodial or noncustodial parent
      arrears. As important as income                         noted that in his village, over half of the           demonstrates, and the tribunal finds
      withholding is to enforcement of child                  people with child support orders lose                 good cause not to require the income
      support orders, we have tried to                        over 50 percent of their paychecks to                 withholding; or (2) a signed written
      accommodate the needs of Tribes and                     income withholding. The individual’s                  agreement is reached between the
      Tribal organizations in how income                      only means of getting by is by receiving              custodial and noncustodial parent
      withholding procedures are                              general assistance. Most, therefore,                  which provides for an alternative
      implemented by Tribal IV–D programs.                    choose not to work.                                   arrangement and is reviewed and
         2. Comment: One State commenter                         Response: The withholding limits set               entered into the record by the tribunal.
      said that Tribes should count allotment                 by a Tribe or Tribal organization may be                 5. Comment: One State commenter
      payments (payments made to                              lower than the maximum CCPA limits,                   suggested that § 309.110 incorporate
      individuals from either the Tribe or the                so that income withholding itself does                UIFSA requirements.
      Bureau of Indian Affairs [BIA]) or                      not create a disincentive to remain                      Response: We disagree that it is
      winnings from gaming as income. Two                     employed. The limit set by a Tribe or                 appropriate to incorporate specific
      State commenters suggested that Tribes                  Tribal organization may be lower, but                 UIFSA procedures in these regulations.
      should withhold Tribal benefits (casino                 may not be higher than those set forth                Section 309.110 assures that valid
      profits, oil and mineral rights) of all                 in the CCPA. There is nothing to                      income withholding orders will be
      obligors and allow other entities to                    prevent a Tribe from setting the upper                honored. We have incorporated
      participate in this intercept program. A                limit for income withholding at any                   procedures at § 309.110(n) which
      Tribal commenter suggested that the                     amount deemed appropriate, as long as                 require the Tribal IV–D agency to
      regulation should not interfere with                    such limit does not exceed CCPA limits.               receive and process income withholding
      Indian Tribal per capita payments,                      The limits set forth in the CCPA are the              orders issued by States, other Tribes,
      Individual Indian Monies (IIM), trust                   highest percentages allowed under                     and other entities and promptly serve
      income or Social Security benefits. The                 Federal law and apply to Tribal income                such orders on employers within the
      commenter also suggested that Tribes                    withholding orders under these Tribal                 Tribe’s jurisdiction.
      should also have the discretion to set                  IV–D regulations. However, the actual                    6. Comment: One State commenter
      lower income withholding limits than                    income withholding limit is set by                    noted that the section is silent
      the Consumer Credit Protection Act                      Tribes and may be lower than the                      concerning penalties against employers
      (CCPA) allows.                                          maximum established in the CCPA.                      to enforce compliance with income
         Response: The extent to which trust                     When a noncustodial parent’s                       withholding orders and allocation of
      distributions, including per capita                     financial circumstances change, or a                  income withholding when there are
      payments, may be garnished by a Tribe                   default order is entered because income               multiple orders.
      to satisfy its own order of support is                  was not known, the noncustodial parent                   Response: Section 309.110(g) requires
      strictly a matter of Tribal law.                        should go back to the appropriate                     that Tribes have procedures under
      Garnishment of Indian trust                             tribunal to seek a modification of the                which employers are liable for the
      distributions by States is prohibited                   order.                                                accumulated amount the employer
      under 25 U.S.C. 410. This statute states                   4. Comment: One Tribal commenter                   should have withheld from the
      that any money accruing from any lease                  stated that until Tribes demonstrate                  noncustodial parent’s income. Section
      or sale of lands held in trust is not liable            substantial enforcement difficulties that             309.110(k) requires that Tribal law must
      for the payment of any debt without the                 can directly benefit from income                      provide that the employer is subject to
      approval of the Secretary of the Interior.              withholding, this section should be                   a fine for discharging a noncustodial
      For purposes of this regulation, we have                eliminated. This commenter suggested                  parent from employment, refusing to


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      employ or taking disciplinary action                    which merely duplicates language and                  providing services under title IV–D of
      against any noncustodial parent because                 conditions specified in the instructions              the Act. In recognition of this statutory
      of income withholding. Section                          to the form itself.                                   mandate, the Tribal IV–D distribution
      309.110(n) income withholding requires                     10. Comment: One State commenter                   requirements must provide for
      the Tribal IV–D agency be responsible                   stated that the difference in withholding             distribution in accordance with section
      for receiving and processing income                     requirements for Indian and non-Indian                457 rules when a Tribe receives a
      withholding orders from States, Tribes                  citizens creates operational issues,                  request for assistance in collecting
      and other entities, and ensuring orders                 including the fact that States’ automated             support from a State IV–D agency.
      are properly and promptly served on                     systems are not equipped to handle the                   Therefore, section 457 of the Act does
      employers within the Tribe’s                            different timeframes. A Tribal                        not apply to collections under the Tribal
      jurisdiction. Language concerning the                   commenter stated that Tribes should be                IV–D program unless a State IV–D
      treatment of multiple orders has been                   exempt from the immediate income                      agency requests assistance in collecting
      added at § 309.110(m) to provide that                   withholding.                                          support from a Tribal IV–D agency.
      income that is withheld be allocated                       Response: We believe that the income               Tribal IV–D programs are not required
      across all valid orders. We do not                      withholding provisions in § 309.110 are               to distribute support collections using
      believe that additional regulation is                   sufficiently consistent with State rules              the complex section 457 distribution
      required at this time.                                  and provide the minimum requirements                  requirements under this final rule.
         7. Comment: One State commenter                      necessary to ensure successful                        Rather, we have required Tribal IV–D
      stated that allowing direct income                      withholding among IV–D programs                       agencies, upon receipt of a request from
      withholding from another State or Tribe                 when there are valid income                           a State IV–D agency for assistance in
      under UIFSA would save work for the                     withholding orders in place. Use of the               collecting support under § 309.120,
      Tribal IV–D program and that since                      standard Federal income withholding                   which specifies required
      States are already required to extend                   form by both State and Tribal IV–D                    intergovernmental procedures for Tribal
      this privilege to Tribes the                            programs will ensure responsiveness of                IV–D programs, to either: (1) Forward
      responsibility should be reciprocal.                    employers. All employers must                         collections to the State IV–D agency for
         Response: We have not adopted this                   recognize this form and respond                       distribution using the section 457
      suggestion. As noted earlier, Tribes are                immediately to this important                         requirements, or (2) contact the State
      not required to adopt UIFSA. Tribes                     enforcement tool. The flexibility
                                                                                                                    IV–D agency to determine appropriate
      may choose to allow direct income                       allowed under § 309.110(h) to provide
                                                                                                                    distribution under section 457 and
      withholding but it is their choice.                     an alternative arrangement to income
         8. Comment: One Tribal commenter                                                                           distribute the collections accordingly.
                                                              withholding is substantially parallel to
      said that requiring that income                                                                               The latter option would be appropriate,
                                                              45 CFR 303.100(b) and we do not
      withholding include amounts ‘‘to be                                                                           for example, if the Tribal IV–D agency
                                                              believe that implementation of
      applied toward liquidation of any                                                                             is providing IV–D services to the family
                                                              § 309.110 by Tribes will lead to
      overdue support’’ may affect a parent’s                                                                       and subsequently receives a request for
                                                              operational problems for States.
      willingness to pay.                                        These regulations do not require                   assistance from a State in collecting
         Response: Payment of overdue                         immediate income withholding,                         assigned support from a prior period of
      support remains the responsibility of                   although Tribal IV–D programs may                     receipt of State TANF.
      obligors. Nothing in this regulation                    choose to impose withholding                             Similarly, we have required that, if a
      precludes an obligor from seeking an                    immediately to avoid any possibility for              Tribal IV–D agency receives a request
      acceptable agreement for repayment of                   default by obligors who are employed.                 for assistance in a Tribal IV–D case
      arrearages or, in certain specific and                  Under § 309.110(i), the income of                     under § 309.120 from another Tribal IV–
      appropriate instances, and with the                     noncustodial parents is subject to                    D agency, collections must be either: (1)
      agreement of the State, a compromise of                 income withholding on the date on                     Forwarded to the requesting Tribal IV–
      arrearages owed to a State pursuant to                  which the payments the noncustodial                   D agency for distribution in accordance
      the law which established the support                   parent has failed to make are at least                with § 309.115; or (2) distributed in
      obligation in the first instance. We                    equal to the support payable for one                  accordance with instructions requested
      previously issued two Policy                            month unless a determination is made                  of, and provided by, the other Tribal IV–
      Interpretation Questions (PIQs) on this                 to exempt the obligor from income                     D agency.
      subject. PIQ–99–03 and PIQ–00–03                        withholding under § 309.110(h).                          2. Comment: One State commenter
      provide general information concerning                                                                        said that automation is a requirement
      compromise of child support arrears.                    Section 309.115—What Procedures                       for distribution and that the regulations
      This, and other policy issued by OCSE,                  Governing the Distribution of Child                   must be the same for States and Tribes.
      may be found at: https://                               Support Must a Tribe or Tribal                           Response: Title IV–D of the Act
      www.acf.dhhs.gov/programs/cse/                          Organization Include in a Tribal IV–D                 imposes explicit distribution and
      poldoc.htm.                                             Plan?                                                 automation requirements upon State IV–
         9. Comment: Two Tribal commenters                      1. Comment: Five Tribal commenters                  D agencies but does not impose such
      noted that including instructions for                   stated objections to having OCSE                      requirements on Tribal IV–D programs.
      completing the standard Federal income                  impose a State-based distribution                     As discussed above, we have revised the
      withholding form in the rule is                         scheme. Instead, they suggested that the              final rule to ensure that, when
      duplicative and perhaps conflicting                     regulations permit Tribes to merely                   appropriate, Tribal IV–D agencies send
      with regulatory income withholding                      describe how they will distribute                     support collections to State IV–D
      provisions.                                             support collections.                                  programs for distribution in accordance
         Response: In light of the requirement                  Response: Section 457 of the Act                    with section 457, or contact State IV–D
      that the standard Federal income                        imposes requirements which govern                     agencies to determine the appropriate
      withholding form be used whenever                       distribution of support collections in a              distribution, without requiring Tribal
      income is to be withheld, we agree with                 IV–D case (related custodial parent,                  IV–D programs to adopt the complex
      the commenter and have eliminated                       noncustodial parent and child(ren))                   statutory distribution requirements that
      language in proposed § 309.110(b)                       whenever a State IV–D program is                      apply to State IV–D programs.


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         We understand the importance of                         Response: These final regulations                  the State IV–D agency for IV–D services.
      minimum automation standards for                        must be consistent with existing Federal              Or a State may refer a case to the Tribal
      Tribal IV–D programs to ensure program                  statutory law governing assignment of                 IV–D agency for assistance in collecting
      efficiency and effectiveness. To that                   rights to support to States as a condition            support assigned to the State for some
      end, we expect to promulgate                            of receipt of certain State assistance, and           prior period of receipt of assistance from
      regulations establishing such minimum                   distribution of support collections                   the State.
      standards for automated systems                         assigned to States. There are no                         Section 309.115 then addresses
      (beyond planning provisions articulated                 corresponding Federal assignment                      distribution requirements if a family
      under this rule) in the future after                    requirements as a condition of receipt of             receiving Tribal IV–D services is
      consultation with all stakeholders.                     assistance under Tribal assistance                    currently receiving or formerly received
         We also recognize that some Tribal                   programs, although some Tribal TANF                   Tribal TANF and there is an assignment
      IV–D programs do, and may continue to,                  programs have adopted a requirement                   of support rights to the Tribe.
      contract with State IV–D programs to                    for assignment of support as a condition                 A further distinction is made with
      use the State’s automation system to                    of receipt of Tribal TANF. To the extent              respect to families who have assigned
      calculate appropriate distribution of                   that Federal law requires States to retain            support rights as a condition of receipt
      collections. In these instances,                        assigned support collections as                       of Tribal TANF from another Tribe. The
      forwarding collections to the State, or                 reimbursement for receipt of State                    Tribal IV–D agency may have received
      contacting the State to determine                       public assistance, these regulations                  a request for assistance in collecting
      appropriate distribution would be                       cannot undermine that requirement.                    support from a State or another Tribal
      unnecessary.                                            Any changes to or simplification of the               IV–D agency. If the family is currently
         3. Comment: One State commenter                      distribution process in State IV–D                    receiving Tribal TANF, there is an
      indicated that distribution would                       programs must come about as a result of               assignment to the Tribe, and the Tribal
      require another programming change for                  statutory changes. The Administration                 IV–D agency has received from a State
                                                              has urged the Congress to adopt                       or another Tribal IV–D agency a request
      State systems if collected support had to
                                                              simplified distribution requirements for              for assistance in collecting support
      be distributed to Tribal child support
                                                              State IV–D programs that would ensure                 previously assigned to that State or
      enforcement programs.
                                                              more support is paid to families to help              Tribe, the regulation allows the Tribal
         Response: The impact of State IV–D
                                                              them attain or maintain their self-                   IV–D agency to retain assigned support
      program cooperation with Tribal IV–D
                                                              sufficiency.                                          up to the amount of Tribal TANF paid
      programs and distribution by States of
                                                                 6. Comment: One State commenter                    to the family. The Tribal IV–D agency
      collections sent to or received from                                                                          must then send any remaining
                                                              said that the regulations should address
      Tribal IV–D programs will depend on                                                                           collections to the requesting State or
                                                              offset of previously provided TANF
      each State’s automated system. Federal                                                                        Tribal IV–D agency for distribution, as
                                                              benefits and priority of distribution,
      funding is available for 66 percent of all                                                                    appropriate, or contact the State or other
                                                              especially when a family may have
      appropriate and allowable costs                                                                               Tribe to determine accurate distribution
                                                              received State and Tribal benefits in
      associated with any needed                                                                                    and distribute the amount of the
                                                              varying sequences throughout a
      programming changes to State                                                                                  collection in excess of the Tribal TANF
                                                              significant period of time. Another State
      automated systems.                                      commenter said that a hierarchy for                   reimbursement accordingly. The
         4. Comment: One Tribal commenter                     collection and distribution is necessary.             hierarchy for distribution in different
      said that because Tribes do not have the                   Response: We have revised and                      case circumstances is illustrated in a
      same economic base as State                             clarified § 309.115 governing                         chart that appears later in the
      governments, Tribes should not be                       distribution of collections in a Tribal               discussion.
      required to reimburse the Federal                       IV–D case by Tribal IV–D programs in                     If the family formerly received Tribal
      government from IV–D collections.                       response to this comment and concerns                 TANF from another Tribe, there is an
         Response: This final rule does not                   that Tribal IV–D programs not be                      assignment of support to that Tribe, and
      require Tribal IV–D agencies to                         responsible for complex distribution                  the Tribal IV–D agency has received a
      reimburse the Federal government using                  requirements that apply to State IV–D                 request for assistance on behalf of the
      retained Tribal IV–D collections in                     programs. Section 309.115 specifies                   family from a State or that other Tribal
      Tribal TANF cases, or otherwise share a                 distribution requirements in a Tribal                 IV–D agency, the regulation requires the
      portion of retained Tribal IV–D                         IV–D case based on specific                           Tribal IV–D agency to send all
      collections with the Federal                            circumstances that may exist for each                 collections to the State or other Tribal
      government. The Federal government by                   case. The regulation requires a Tribal                IV–D agency for distribution. The
      statute is entitled to a share of                       IV-D agency to distribute collections in              requesting State or Tribal IV–D agency,
      collections assigned to a State by a                    a timely manner and to apply                          as appropriate, is then responsible for
      family as a condition of receipt of                     collections first to satisfy current                  distribution in accordance with State
      assistance under titles IV–A, IV–E, or                  support.                                              IV–D program requirements at section
      XIX of the Act. No parallel requirement                    The Tribal IV–D agency must pay all                457 of the Act or 45 CFR 302.51 or
      applies to Tribes.                                      support to the family when the family                 302.52, or in accordance with these
         5. Comment: One Tribal commenter                     receiving Tribal IV–D services has never              Tribal distribution requirements in
      said that part of child support                         received Tribal TANF and the Tribal IV-               § 309.115. Alternatively, the Tribal IV–
      enforcement has to do with helping                      D agency has not received a request for               D agency may contact the State or other
      children and their families, while the                  assistance in collecting support for the              Tribal agency to determine appropriate
      other has to do with retrieving funds                   family from a State IV–D agency or                    distribution of the collection as
      that have been paid out in public                       another Tribal IV–D agency under                      explained above.
      assistance. This commenter stated that                  § 309.120. A Tribal IV–D agency may                      The requirement to send all
      the latter function has a very negative                 receive a request for assistance in                   collections to a State or other Tribal IV–
      impact on some Tribal children because                  securing support from a State if the                  D program that has requested assistance
      so many Tribal members have been on                     custodial parent resides in that State                on behalf of a family under certain
      public assistance.                                      and has applied for or been referred to               circumstances addresses a number of


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      16664                     Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules and Regulations

      possible scenarios. For example, the                                      program that requires an assignment of                                      collections owed to families reach them
      family may have applied for IV–D                                          support rights, we believe the only                                         in a timely manner.
      services from a State or another Tribal                                   entity in a position to determine                                             The rules for distribution in cases
      IV–D agency and not directly with the                                     appropriate distribution is the                                             involving each of these circumstances
      Tribal IV–D agency making the                                             requesting State or Tribal IV–D agency.
                                                                                                                                                            are included in § 309.115, as well as
      collection. Or the family may be                                          We have, however, included an option
                                                                                                                                                            clarification that any collection as a
      receiving or may have formerly received                                   that allows Tribal IV–D agencies to
      TANF or other public assistance from                                      determine appropriate distribution by                                       result of Federal income tax refund
      the requesting State or Tribal IV–D                                       contacting the requesting State or Tribe                                    offset that is distributed by a Tribal IV–
      agency. As long as the family is not                                      and to then distribute the collections as                                   D agency must be applied to satisfy
      currently receiving Tribal TANF from                                      directed. State and Tribal IV–D program                                     arrearages. The following chart should
      the same Tribe as the Tribal IV–D                                         requirements for timely distribution and                                    be of assistance to Tribal and State IV–
      agency making the collection, under a                                     disbursement of collections will ensure                                     D agencies.

                       Tribal IV–D case type                                   Case 1           Case 2           Case 3           Case 4           Case 5           Case 6           Case 7           Case 8           Case 9

      Current Tribal TANF case w/assignment .......                           ..............   ..............   ..............         X                X          ..............   ..............   ..............   ..............
      Current Tribal TANF case w/o assignment ...                             ..............         X          ..............   ..............   ..............   ..............   ..............         X          ..............
      Never Tribal TANF case ................................                       X          ..............         X          ..............   ..............         X          ..............   ..............   ..............
      Former Tribal TANF w/assignment ................                        ..............   ..............   ..............   ..............   ..............   ..............         X          ..............         X
      Request for services from State IV–D agen-
        cy ................................................................   ..............   ..............        X           ..............        X           ..............   ..............        X                X
      No request for services from State IV–D
        agency ........................................................            X                X           ..............        X           ..............        X                X           ..............   ..............
      Request for services from another Tribal IV–
        D agency ....................................................         ..............   ..............   ..............   ..............   ..............        X           ..............   ..............   ..............
      No request for services from another Tribal
        IV–D agency ...............................................                X                X                X                X                X           ..............        X                X                X
        Distribution: The Tribal IV–D agency:
        Cases 1 and 2: Must send all collections to the family.
        Case 3: Must send all collections to the State IV–D agency for distribution under section 457 of the Act.*
        Case 4: May retain collections up to the total amount of Tribal TANF paid to the family, then must send excess collections to the family.
        Case 5: May retain collections up to the total amount of Tribal TANF paid to the family, then must send excess collections to the State IV–D
      agency for distribution under section 457 of the Act.*
        Case 6: Must send all collections to the other Tribal IV–D agency for distribution under § 309.115.
        Case 7: Must pay current support to the family, may retain excess collections up to the total amount of Tribal TANF paid to the family and pay
      excess collections to the family.
        Case 8: Must send all collections to the State IV–D agency for distribution under section 457 of the Act.*
        Case 9: Must send all collections to the State IV–D agency for distribution under section 457 of the Act.*
        *For cases 3, 5, 8 & 9: The Tribal IV–D agency may, rather than send collections to the State IV–D agency for distribution, contact the State
      IV–D agency to determine appropriate distribution, and distribute the collections as directed.


        These regulations attempt to address                                      Response: By its terms, section 457 of                                    do not require Tribal IV–D agencies to
      the many possible combinations of                                         the Act does not address distribution                                       establish retroactive support, Tribal IV–
      Tribal IV–D case circumstances                                            rules applicable to Indian Tribes or                                        D agencies may choose to do so. If a
      involving assignment of support rights                                    support collected by Tribal IV–D                                            State IV–D agency has requested
      to State and Tribal public assistance                                     programs. However, the revised                                              assistance from a Tribal IV–D agency,
      programs, and intergovernmental                                           § 309.115 ensures that support collected                                    the Tribe must provide all appropriate
      requests for assistance in collecting                                     by Tribal IV–D programs on behalf of                                        services under its Tribal IV–D plan and
      support. We encourage State and Tribal                                    State IV–D programs that have requested                                     forward any collections, in accordance
      IV–D programs to work together to                                         assistance under § 309.120 from the                                         with § 309.115, to the requesting State
      maximize the amount of support that is                                    Tribal IV–D program is sent to the State                                    for distribution in accordance with
      paid to families and ensure support                                       IV–D program for distribution in                                            section 457 of the Act and 45 CFR
      obligations are set in an amount that is                                  accordance with section 457 of the Act,                                     302.51 and 302.52.
      based on the obligor’s ability to pay.                                    or the Tribe must contact the State to                                        9. Comment: One Tribal commenter
                                                                                determine appropriate distribution and                                      suggested that we continue the practice
      This will reduce circumstances under
                                                                                distribute the support as directed.                                         under which child support assigned to
      which large arrearages are assigned to a
                                                                                  8. Comment: One State commenter                                           a Tribe may be retained by the Tribe up
      State based on default support orders set
                                                                                said that the regulations should provide                                    to the amount of Tribal TANF assistance
      without knowledge of an obligor’s
                                                                                that the Tribes seek retroactive support                                    received by a family and the amount in
      ability to pay. If complex distribution
                                                                                to assist a State that has previously                                       excess of the total TANF assistance
      requirements that apply to State IV–D
                                                                                provided State TANF.                                                        must be paid to the family.
      programs are simplified in the future to                                    Response: Retroactive support is                                            Response: Underlying the distribution
      ensure more support is paid to families,                                  support for a prior period that is                                          regulations at § 309.115 is the concept
      State and Tribal IV–D programs, as well                                   established based on an obligor’s ability                                   that all support collections must be paid
      as the families themselves, will benefit                                  to pay. For example, a Tribal court may                                     to the family unless there is an
      from the changes in statute.                                              establish a support order in June for a                                     assignment of support rights to a State
         7. Comment: One State commenter                                        six-month-old child going back to the                                       or Tribe as a condition of receipt of
      said that there is no legal basis upon                                    date of the child’s birth. The amount                                       assistance. Whether or not a Tribe
      which a Tribe can distribute collections                                  from January to June is considered                                          conditions receipt of TANF assistance
      differently from States.                                                  retroactive support. While these rules                                      on assignment of support to the Tribe is


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      not mandated by Federal statute or                      procedures in place to facilitate                        Response: When a State and Tribe
      regulation, but is an option that Indian                coordination between IV–D programs.                   enter into an agreement, the agreement
      Tribes may exercise at their discretion.                We are committed to providing Tribes                  should be mutually agreeable to both
      We have made a conforming change to                     and States an opportunity to work out                 parties.
      the Tribal TANF regulations at 45 CFR                   specific processes for cooperation                       4. Comment: One State commenter
      286.155(b)(1) to remove the requirement                 without imposing more specific                        suggested the Federal government
      under which amounts in excess of the                    regulatory mandates at this time.                     should reach agreements with Tribes on
      total amount of TANF assistance be paid                    The characteristics of cases requiring             issues that affect all States; otherwise,
      to the family. Section 286.155(b)(1)                    services, the quality of the information              uniformity will be sacrificed. Another
      continues to require that in no case may                received from the initiating agency, the              State suggested that we should establish
      a Tribe retain assigned collections in                  amount of staff and other resources                   basic rules on negotiation procedures
      excess of the amount of Tribal TANF                     available to the responding agency, and               between States and Tribes.
      paid to the family. Distribution of                     the development of new or expanded                       Response: We are committed to
      support beyond the total amount of                      working relationships between Tribes                  working with Tribes and States to
      Tribal TANF assistance paid to the                      and States are all factors which bear on              ensure cooperation and assistance
      family is now addressed exclusively in                  Tribal/State cooperative relationships.               between them as necessary to ensure
      Tribal IV–D regulations at § 309.115.                   We are committed to fostering                         children receive needed support. We
                                                              cooperative Tribal/State relationships. If            believe that issues raised by cooperation
      Section 309.120—What                                                                                          and coordination between States and
      Intergovernmental Procedures Must a                     it becomes necessary to promulgate
                                                              specific regulations applicable to all IV–            Indian Tribes require local solutions if
      Tribe or Tribal Organization Include in                                                                       they are to be successful. Still, we
      a Tribal IV–D Plan?                                     D programs to clarify the respective
                                                              roles in an intergovernmental                         intend to work closely with State and
        1. Comment: Eight State commenters                    relationship, we will do so in                        Tribes, issue guidance and share best
      suggested that States would need                        partnership with Tribes and States.                   practices and, if regulations are
      additional resources and one stated that                                                                      necessary to ensure cooperation, we will
                                                                 State and Tribal IV–D agencies may
      States will have to consider their own                                                                        work with our State and Tribal partners
                                                              claim Federal Financial Participation
      program needs as a priority when                                                                              to develop rules that appropriately
                                                              (FFP) at the applicable rate otherwise
      responding to requests for services from                                                                      balance the impact on both Tribes and
                                                              provided under applicable regulations:
      Tribal IV–D programs. Another State                                                                           States.
                                                              66 percent of expenditures when the                      5. Comment: One Tribal commenter
      commenter said that there should be a
                                                              State responds to a Tribal request for                stated the regulations should clarify that
      Federal directive outlining State duties,
      which indicates how States will be                      interjurisdictional services and 90                   States will not monitor or oversee
      reimbursed whenever they respond to a                   percent of expenditures for the first                 Tribes.
      Tribal request for assistance. One State                three years of a fully operational Tribal                Response: There is nothing in this
      suggested that reimbursement be at 90                   program and 80 percent thereafter when                final regulation which authorizes or
      percent of the costs incurred.                          the Tribe responds to a State’s request               requires States to monitor Tribal IV–D
        Response: State IV–D programs may                     for interjurisdictional services. When a              programs.
      receive FFP at the 66 percent rate for                  case is referred for services, the                       6. Comment: One Alaska Native
      expenditures in providing services in                   responding State or Tribe must open its               commenter stated that the regulations
      response to a request from a Tribal IV–                 own case and provide the necessary                    assume there is a geographical
      D agency. Section 309.65(a)(2) requires                 services.                                             component to the Tribes’ jurisdiction
      Tribal IV–D programs to provide IV–D                       2. Comment: One State commenter                    and that Tribal court jurisdiction does
      services required by law and regulation,                noted that use of tax offset and locate               not mesh with UIFSA or FFCCSOA.
      including referral of cases to appropriate              functions must be done through the                    This commenter asked how controlling
      State IV–D agencies or to other Tribal                  States because Tribes do not have direct              orders or continuing exclusive
      IV–D agencies and § 309.120(a) requires                 access to necessary tools.                            jurisdiction determinations can be made
      Tribal IV–D programs to extend the full                    Response: These regulations do not                 by Tribal courts, if there is no
      range of services available under their                 require the use of tools by Tribal IV–D               geographic region from which to
      approved IV–D plans to all other IV–D                   agencies for which there is no statutory              determine whether the parent or child
      programs. In addition, we have included                 authority. The Tribe and States may                   resides ‘‘in the State’’ for purpose of
      a parallel requirement in 45 CFR                        enter into agreement to refer cases to the            those determinations.
      302.36(a)(2), which requires each State                 State for submittal for Federal tax                      Response: As noted earlier in the
      to extend the full range of services                    refund offset and any such access would               preamble, the lack of ‘‘Indian country’’
      available under its IV–D plan to all                    currently require request for services                in Alaska does not prevent Alaska
      Tribal IV–D programs, including                         from the State. It is premature to                    Native villages from applying for direct
      promptly opening a case where                           regulate specific procedures governing                funding or from exercising jurisdiction
      appropriate. We encourage States and                    requests for services which Tribes are                over their members. FFCCSOA does not
      Tribes to work together to design                       legally unable to perform directly at this            limit the exercise of jurisdiction to a
      intergovernmental procedures and look                   time. At some future date, if it becomes              geographical area. FFCCSOA only
      to established, proven interstate                       necessary to establish specific new                   requires a court exercising jurisdiction
      procedures that apply to State IV–D                     procedures, we will consider such rules               to have the authority to do so. UIFSA is
      programs as a guide.                                    after consultation with stakeholders.                 not applicable to Tribes and is not a
        Even though State and Tribal IV–D                        3. Comment: One State commenter                    factor when Tribes are making
      agencies must respond to each other’s                   suggested that where a State enters into              jurisdictional determinations in relation
      requests for assistance, we recognize                   an agreement to provide services to a                 to Tribal members.
      that Tribal and State programs are at                   Tribal court, the Tribe should reimburse                 7. Comment: One commenter
      different stages of development. We                     the State, but that a State should never              observed that States recoup past
      encourage, and allow time for Tribes                    be compelled to appear in a Tribal                    assigned child support payments as a
      and States to put mutually agreeable                    court.                                                punitive measure and that a Tribal IV–


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      D program, in complying with                            accurately reflect how Tribal IV–D cases              assisting in those efforts, providing
      § 309.120(a) requiring                                  referred to the State IV–D programs                   written guidance and sharing best
      intergovernmental cooperation, may                      should be reported. Please note that                  practices as needed and requested. If we
      create a disincentive to Tribal members                 Tribes are not required to complete the               determine that additional regulations
      in remote areas from obtaining/keeping                  OCSE–157 reports.                                     mandating cooperation requirements are
      employment.                                                9. Comment: One State commenter                    necessary for the effective and efficient
         Response: The recoupment of past                     stated that Tribal IV–D plans should                  operation of IV–D programs, we will
      assigned support is not punitive, but is                include assurances that the Tribe will                promulgate them at a later date.
      required by Federal law. Section                        cooperate with requests for assistance                   11. Comment: One commenter asked
      309.120(a) requires Tribal IV–D agencies                with service of process. This commenter               if cooperative arrangements with States
      to extend the full range of services                    said that Tribes should establish a                   are going to be absolutely necessary for
      available under their IV–D plans upon                   central registry for receipt of incoming              Tribes.
      request from a State or another Tribal                  interstate and a Tribal information                      Response: Whether Tribes enter into
      IV–D program. However, the requesting                   agency that maintains a list of tribunal              cooperative arrangements with States or
      agency may not dictate the actions taken                addresses.                                            other entities, as well as the nature of
      by the responding jurisdiction. The                        Response: Tribes are required to                   such arrangements, is entirely at their
      responding agency must take                             provide the full range of Tribal IV–D                 discretion. Nothing in this regulation
      enforcement actions as required by                      services upon request of another State or             mandates such arrangements as a
      Federal regulations and its own laws                    Tribal IV–D program. As noted above,                  condition of receipt of IV–D funds.
      and procedures. We recommend that                       § 309.120 requires Tribal IV–D agencies               Service agreements, contracts, and other
      IV–D programs contact each other to                     to extend the full range of services                  types of formal agreements between
      determine how to most efficiently and                   available under their IV–D plans to all               Tribes and States may facilitate the
      effectively coordinate IV–D services at                 IV–D programs upon request and to                     effective and efficient delivery of IV–D
      the local level.                                        cooperate with States and other Tribal                services, and we encourage them when
         We are particularly aware of Tribal                  IV–D agencies to provide services                     deemed appropriate by the parties.
      concerns about support orders entered                   required by law and regulation. This                     12. Comment: One State commenter
      against Tribal members by default,                      could include assisting with service of               asked how programming costs would be
      resulting in large arrearages owed to a                 process or, in the alternative, bringing              paid if Tribes enter into agreements
      State that an obligor is unable to pay                  enforcement action in a Tribal tribunal.              with States to have the States’
      and which may discourage compliance.                    We have determined that additional                    automated systems process child
      We strongly urge States and Tribes to                   regulation is not necessary at this time.             support monies.
      work together in these instances to                        As to the suggestion that Tribes be                   Response: We expect that processing
      reach agreement on steps to take that                   mandated to establish an interstate                   of child support monies collected by
      will result in ongoing support payments                 registry, while we have not mandated                  Tribal IV–D programs will be
      to families, including the possibility of               such a registry, Tribal IV–D programs                 accomplished under the same
      compromising arrearages permanently                     may determine such a registry is helpful              framework as processing by State A of
      assigned to the State and/or entering                   for management purposes. Insofar as a                 support collected by State B. Federal
      into repayment agreements.                              State requires the address of a Tribal                reimbursement is available to States at
         8. Comment: Two commenters                           tribunal, States should request the                   the usual match rate. The Tribe may
      suggested that the reporting                            address from the Tribal IV–D agency.                  claim allowable contract costs and the
      requirements must be clarified and that                    10. Comment: Seven Tribal and State                State must account for any payments
      States will not know how to report                      commenters expressed concern that                     under the contract as program income.
      State/Tribal cases for purposes of                      States did not have reciprocal                        At this time we are not persuaded that
      completing the OCSE–157 reports.                        obligations to cooperate with Tribal IV–              additional regulation is necessary.
         Response: State IV–D agencies are                    D programs and observed that                             13. Comment: Eight Tribal
      required to submit the OCSE–157, the                    cooperation was key to the success of all             commenters criticized the requirement
      Support Enforcement Annual Data                         IV–D programs.                                        that Tribes recognize default paternity
      Report, which is to be used to report                      Response: As stated in our earlier                 orders and default orders based on
      program status and accomplishments                      discussion of § 309.120, both Tribes and              imputed income as a matter of course
      under title IV–D of the Social Security                 States are required to extend the full                when the courts that issued such orders
      Act. There are two specific parts of the                range of services available under a IV–               did not have jurisdiction in the first
      OCSE–157 which accommodate Tribal                       D plan and respond to all requests                    instance.
      IV–D cases. At Line 1: Cases Open and                   received from other IV–D programs. We                    Response: While FFCCSOA requires
      the End of the Fiscal Year, ‘‘[i]nclude                 made a conforming change to include a                 orders to receive full faith and credit,
      cases open at end of the fiscal year as                 parallel requirement in 45 CFR                        nothing in that statute nor in this
      a result of requests for assistance                     302.36(a)(2), which requires each State               regulation requires that invalid orders
      received from other States, as well as                  to extend the full range of services                  be accorded full faith and credit. If
      cases open in your State that you have                  available under its IV–D plan to all                  invalid default orders are entered, they
      referred to another State. Do not include               Tribal IV–D programs. Without more                    are subject to challenge under ordinary
      on this line Native American and                        experience with cooperation between                   rules of State or Tribal law. See OCSE–
      international cases over which the State                these entities, we do not believe that it             AT–02–03 on the applicability of
      has no jurisdiction. These cases should                 is appropriate to promulgate uniform                  FFCCSOA to States and Tribes.
      be reported separately on line 3.’’ Line                regulations governing the cooperation                 However, when valid default orders
      3 of the OCSE–157 is provided to report                 process. At this initial stage in the                 based on imputed income create
      on Cases Open for Which the State has                   development of Tribal IV–D programs,                  hardship on obligors because they are
      No Jurisdiction. See OCSE–AT–01–09                      we want to allow States and Tribes time               not based on the ability of the obligor
      for additional information.                             and maximum flexibility to establish                  to pay support, we urge States to modify
         We are working with States on                        local procedures for coordination and                 those orders and consider
      revisions to the OCSE–157 form to more                  cooperation. We are committed to                      compromising arrearages owed to the


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      State, when appropriate. As discussed                   entitlement programs. They suggested                  funding is based upon documentation
      earlier, we urge State and Tribal IV–D                  that Tribal IV–D programs be funded                   submitted by Tribes including the SF
      programs to work together to remove                     continuously, with quarterly grant                    424 and 424A and is awarded based on
      impediments to timely and consistent                    amounts determined, in part, by the                   reasonable, necessary, and allocable
      payment of support.                                     Tribe’s own quarterly estimates. The                  expenditures of approved Tribal IV–D
         14. Comment: One State commenter                     estimates would be subject to review                  programs. We are not persuaded that the
      stated that FFCCSOA applies to Tribes                   and approval and the Tribes may be                    factors suggested by the commenters are
      and that § 309.120 should require Tribes                requested to submit additional                        appropriate for the IV–D program.
      to comply with the Act in its entirety,                 supporting documentation as necessary.                However, in their budget requests, there
      not just the enforcement section. This                     Response: The Tribal IV–D program is               is nothing to preclude Tribes from
      commenter suggested that the word                       an entitlement program. The difference                taking service area and population into
      ‘‘assurance’’ was not strong enough. To                 between Tribal IV–D grants and State                  account.
      address current enforcement problems                    IV–D payments is that Tribal IV–D                        5. Comment: Numerous Tribal
      the section should require Tribes to                    programs are funded for expenditures                  commenters suggested that the
      ‘‘recognize child support orders,                       under an approved IV–D plan based on                  regulations should not require a non-
      including income withholding orders,                    budget requests for a 12-month funding                Federal share and that Tribes should
      issued by other Tribes and Tribal                       period. We have revised § 309.130 to                  receive 100 percent Federal funding.
      organizations and by States.’’                          provide that Tribal IV–D programs                     Some of these commenters said that
         Response: All the requirements of                    eligible for grants of less than $1 million           requiring a non-Federal share would
      FFCCSOA (28 U.S.C. 1738B) are                           per 12-month funding period will                      penalize, rather than support, family
      applicable to States and Tribes. We are                 receive a single annual award of the                  programs. Others indicated that most
      not persuaded that any change to                        total amount and Tribal IV–D programs                 Tribes do not have sufficient resources
      § 309.120 as suggested by the                           with funding of $1 million or more per                to cover the non-Federal share.
      commenter is necessary to impose this                   12-month funding period will receive                     Response: Unlike other Tribal grant
      requirement. To the extent that a valid                 quarterly awards similar to State IV–D                programs, the funding for Tribal IV–D
      order includes provisions for income                    programs.
                                                                                                                    programs are not sum certain grants.
      withholding, FFCCSOA applies.                              2. Comment: One commenter
                                                                                                                    The Tribal IV–D program provides for
         15. Comment: Numerous commenters                     suggested clarification is required
                                                                                                                    90 percent Federal funding for all
      suggested that Tribes should be required                concerning whether Tribal IV–D funds
                                                                                                                    reasonable, necessary and allocable cost
      to implement UIFSA to promote                           will come from a different funding
                                                                                                                    associated with the administration of a
      uniformity and to alleviate                             stream than State funds.
                                                                 Response: As stated in the preamble                IV–D program during the first three
      jurisdictional, as well as operational                                                                        years of operation of a program, and 80
      problems. Several Tribal commenters                     to the NPRM, the funding for Tribal IV–
                                                              D activities is completely separate from              percent thereafter. The provision of
      stated that it was inappropriate to                                                                           Federal funding at 90 percent of
      require Tribes to adopt UIFSA.                          funding for State programs. A Tribe’s
                                                              decision to run its own IV–D program                  program expenditures, with a
         Response: As discussed previously,
                                                              does not impact a State’s IV–D program                concomitant non-Federal share of 10
      States are required to adopt UIFSA as
                                                              funds. Tribal IV–D funding is not                     percent, reflects our understanding of
      the result of an express statutory
                                                              apportioned from a State’s IV–D                       the unique and generally unfavorable
      mandate. We have determined that
                                                              funding. However, funds for the Tribal                fiscal circumstances that Tribes face. We
      requiring Tribes to adopt UIFSA is
                                                              IV–D programs come from the same                      have determined that a non-Federal
      neither necessary nor appropriate.
                                                              appropriation as the State IV–D                       share in expenditures is necessary,
      Subpart D—Tribal IV–D Program                           program.                                              based on the principle that better
      Funding                                                    3. Comment: One commenter said that                programs and better management result
                                                              if Tribes are required to provide a 10 or             when local resources are invested. We
      Section 309.125—On What Basis Is                        20 percent match, then they should be                 acknowledge that Tribes may have to
      Federal Funding of Tribal IV–D                          able to receive an incentive back into                split limited resources between
      Programs Determined?                                    their programs.                                       programs and make difficult decisions
        No comments were received on this                        Response: States receive incentive                 concerning allocation of funds among
      section. Changes were made to the                       funds under section 458 of the Act,                   important Tribal programs. However,
      regulation, however, to specify more                    which does not extend to Indian Tribes.               we are also aware that some Tribes may
      directly what information must be                       There is no statutory authority that                  face unexpected and uniquely adverse
      provided in order for a Tribe to receive                provides for Tribal IV–D program                      conditions that make them temporarily
      Federal funding. We also clarified that                 incentives.                                           unable to provide the non-Federal share
      official issuances of the Department                       4. Comment: Four Tribal commenters                 in a particular program year. To address
      refers only to those that specifically                  suggested that funding should be                      these limited circumstances, we have
      indicate applicability to Tribal IV–D                   allocated based on population,                        incorporated a waiver provision at
      programs. The title of the section was                  geographical area, service area, land                 § 309.130, which allows a Tribe in this
      also modified slightly in the final rule                base, isolation factors and local/national            situation to request a temporary waiver
      by changing ‘‘funding in’’ to ‘‘funding                 scale of economy. Funding should be                   of its non-Federal share, based on
      of’’ for clarity.                                       put under a ‘‘special’’ category similar              requirements described in paragraph (e),
                                                              to the category used for Tribal Program               as discussed earlier in this preamble.
      Section 309.130—How Will Tribal IV–D                    Allocation law enforcement.                              6. Comment: One Tribal commenter
      Programs Be Funded and What Forms                          Response: Funding for Tribal IV–D                  stated that the 90 percent Federal share
      Are Required?                                           programs is authorized by section 455(f)              rate is fair and adequate. This same
        1. Comment: Several Tribal                            of the Social Security Act, which does                commenter suggested that the Tribal
      commenters stated that Tribal IV–D                      not provide for allocation of funds on                non-Federal share requirement be
      programs should be funded in the same                   the basis described. Under title IV–D of              fulfilled through in-kind contributions.
      manner as State IV–D programs, i.e., as                 the Act and § 309.130, Tribal IV–D                    Three other Tribal commenters


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      16668               Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules and Regulations

      suggested the non-Federal share be in                   organization receiving funds under this               Section 309.135—What Requirements
      cash or in-kind.                                        part is expected to share in the financial            Apply to Funding, Obligating and
         Response: The regulation permits                     costs of the program.                                 Liquidating Federal Title IV–D Grant
      Tribes to satisfy their non-Federal share                  In addition, the regulation makes                  Funds?
      requirements with whatever resources                    clear that the Secretary must make                       1. Comment: We received five
      may be available; e.g., cash, non-cash                  specific findings in order to grant a                 positive Tribal comments on the time
      resources provided by the Tribe, or in-                 waiver request. The availability of                   allotted for obligating and spending IV–
      kind third-party contributions, as long                 gaming or other Tribal resources is a                 D grant funds. One commenter
      as the requirements of 45 CFR 74.23 and                 legitimate factor that the Secretary may              criticized requiring Tribes to revise their
      OMB Circular A–87 are satisfied.                        consider under § 309.130 in granting a                financial systems.
      Regardless of how a Tribe chooses to                    waiver, but the absence of gaming or                     Response: There are no provisions in
      satisfy the non-Federal share of program                similar revenue does not necessarily                  § 309.135 that require Tribes to revise
      expenditures, the Federal share remains                 entitle a Tribe to a waiver. Finally,
      limited to the applicable rates provided                                                                      their financial systems. The
                                                              § 309.130 states that Tribes and Tribal               requirements in § 309.135 are consistent
      in § 309.130(c), absent a waiver.                       organizations are responsible for the
         7. Comment: One Tribal commenter                                                                           with requirements in other Federal
                                                              non-Federal share unless notified in                  programs. To be as clear as possible
      stated the assumption that certain
                                                              writing that the Secretary has approved               about the provisions of this section,
      collections a Tribal IV–D program
      makes will lose their identity and be                   a request for waiver. There should be no              however, we have broken up the two
      able to be counted as matching. Where                   uncertainty as to liability for the non-              long paragraphs in the proposed rule
      a Tribe has both a TANF and IV–D                        Federal share; a Tribe or Tribal                      into three shorter paragraphs and added
      program, collected funds could be                       organization is liable for the non-                   topic headings. In addition, to smooth
      allowed for use as matching dollars for                 Federal share unless it has received a                the transition from start-up grant to
      its IV–D program.                                       written approval of a waiver request.                 initial IV–D program funding grants, we
         Response: If a Tribe has a TANF                         9. Comment: One Tribal commenter                   have added new paragraphs (a) and (b)
      program that requires an assignment of                  suggested that we allow Tribes to                     to this section. Paragraph (a) specifies
      support rights as a condition of receipt                request a budget increase by submitting               that IV–D program grant awards will be
      of Tribal TANF, and assigned support                    SF 424 and/or SF 424A with an                         made for 12-month periods that
      collections are retained by the Tribe, the              explanation 60 days before the funds are              coincide with the Federal fiscal year
      TANF regulation at 45 CFR 286.155(b)                    needed. Another three commenters                      (October 1 to September 30). Paragraph
      applies. Section 286.155(b)(2) requires                 indicated that the provision for Tribes to            (b) provides for an initial IV–D program
      that retained collections under TANF                    request a mid-year increase in their                  funding period of 6 to 17 months, in
      assignments to the Tribe must be used                   approved budgets is a positive feature.               order to bring the funding cycle in line
      ‘‘to further the Tribe’s TANF program.’’                   Response: Regulations at § 309.130(f)              with the Federal fiscal year. This is
      This disqualifies such collections from                 permit Tribes and Tribal organizations                necessary for an efficient grant process
      also being used as the Tribe’s IV–D non-                to request budget adjustments by                      and does not affect the Tribal financial
      Federal share.                                          submitting the SF 424 and/or SF 424A                  system or processes.
         8. Comment: One commenter asked                      forms with an explanation of why an                      2. Comment: Two commenters
      what criteria are used to determine                     adjustment is necessary. We also revised              suggested that the rule allow carry-
      whether a Tribe has sufficient resources                this subsection to make clear that                    forward of funding to the following
      to provide the required non-Federal                     increases in a Tribal IV–D budget will                fiscal year.
      match. How will a Tribe’s revenue from                  result in a proportional increase in a                   Response: Since quarterly
      gaming be considered?                                   Tribe’s non-Federal share.                            adjustments can be made to the Tribal
         Response: We have substantially                                                                            IV–D grants based on actual
      revised the non-Federal waiver                             10. Comment: One Tribal commenter                  expenditures, carry-forward of grant
      provisions at § 309.130 to clarify that                 opposed the application of 45 CFR part                funds is not necessary. However, in the
      waivers of the non-Federal share will be                95 to Tribal IV–D programs, saying that               interest of providing Tribes with the
      limited to certain temporary                            such regulation was not appropriate for               maximum flexibility, under our program
      circumstances. In the NPRM and the                      Tribes. As Tribes begin to operate IV–D               regulations at § 309.135, we allow
      interim final regulation we intended the                programs, the Department will gain                    Tribes to liquidate obligations no later
      waiver provisions to apply to atypical                  knowledge and experience with Tribal                  than the last day of the 12-month period
      situations in a particular program year                 system development. Tribes will be able               following the funding period for which
      that make it impossible for a Tribe to                  to provide technical assistance to one                the funds were awarded.
      cover its share of program expenditures.                another on the processes and models
      Such situations were expected to                        that they have developed.                             Proposed Section 309.140—What Are
      represent difficulties over and above the                  Response: In the proposed regulation,              the Financial Reporting Requirements?
      generally poor economic conditions                      we solicited comment on investments in                   We eliminated § 309.140 and moved
      faced by most Tribes (e.g., high                        Tribal IV–D automation and specifically               all financial reporting requirements to
      unemployment rate, lack of economic                     asked for consideration of 45 CFR part                § 309.130, which already contained
      development) which we already have                      95 as a model. We are not regulating                  some of the same material and is
      taken into account by providing for                     Tribal IV–D automation at this time                   discussed earlier in this preamble. This
      Federal funding for up to 90 percent of                 beyond allowable expenditures for                     places all financial reporting
      program expenditures in the first three                 office automation and planning under                  requirements in one place in the
      years of full funding. The final rule                   § 309.145, but will take the suggestions              regulations and should make the
      governing waiver requests makes more                    into consideration as we deliberate in                regulations easier to use.
      explicit the limited availability of                    this area for the future. Of course, no                  1. Comment: Two Tribal commenters
      waivers of the non-Federal share and                    final automation requirements will be                 were concerned that heavy penalties for
      the general agreement and                               imposed on Tribal IV–D programs                       failure to meet program deadlines will
      understanding that a Tribe or Tribal                    without feedback from all stakeholders.               drive away a lot of Tribes.


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         Response: Financial Status Reports                   Tribes need to be wary of vendors and                 Determinations as to whether or not
      are required on a quarterly basis and are               should evaluate vendors for reliability.              costs are reasonable are governed by
      essential to the on-going Tribal IV–D                      Response: Under § 309.145, Federal                 OMB Circular A–87 and will take all
      funding process. They are required                      funds are available for costs of operating            relevant factors into consideration.
      under the terms and conditions of                       a Tribal IV–D program carried out under                  3. Comment: One Tribal commenter
      annual IV–D grant awards. However, to                   § 309.65(a), provided that such costs are             indicated that it is unclear whether
      lessen the burden on Tribes, we have                    determined by the Secretary to be                     Tribes are eligible for Federal assistance
      determined that they may report on the                  reasonable, necessary, and allocable to               for the costs of bad debts. Another
      SF 269A (Short Form) to provide the                     the program. While we agree that                      commenter noted that bad debts are
      minimum necessary information.                          automated data processing systems are                 unallowable costs for States and asked
         Financial Status Reports are due not                 helpful for record keeping, monitoring                if they will be allowed for Tribes.
      later than 30 days following the end of                 and high speed processing in child                       Response: OMB Circular A–87,
      each of the first three quarters and no                 support enforcement cases, such                       Attachment B, establishes principles to
      later than 90 days following the end of                 automated systems are not presently                   be applied in establishing the
      the fourth quarter of each annual                       required for Tribal IV–D programs and                 allowability or unallowability of certain
      funding period and of the subsequent                    therefore are not necessary to operation              items of cost. With regard to ‘‘bad
      12-month liquidation period. Failure to                 of such programs. As stated earlier in                debts,’’ it states that ‘‘[a]ny losses arising
      meet these deadlines will result in                     this preamble, we have begun                          from uncollectible accounts and other
      possible delays in Federal Tribal IV–D                  consideration with stakeholders of                    claims, and related costs are
      funding. If Tribes require technical or                 appropriate minimum Tribal systems                    unallowable unless provided for in
      other assistance to meet the Financial                  automation specifications in                          Federal program award regulations.’’ We
      Status Report deadlines, we encourage                   anticipation of Tribal IV–D programs                  encourage States and Tribes who have
      them to contact us immediately to avoid                 moving toward high-speed automated                    questions about allowable IV–D costs to
                                                              data processing by convening a                        contact us with specific information.
      any undue delay in Federal IV–D
                                                              workgroup. Factors such as                            These final regulations make no
      funding.
                                                              compatibility, scale, functionality and               provision for the costs of bad debts as
         2. Comment: Five Tribal commenters                                                                         allowable expenditures.
                                                              cost, among others, are issues being
      supported less frequent financial                                                                                4. Comment: Ten Tribal commenters
                                                              considered by this workgroup.
      reporting for Tribal IV–D agencies that                    Section 309.145(h) states that among               requested clarification on how indirect
      meet requirements.                                      those Tribal IV–D costs that are                      cost rates would be treated.
         Response: Because the information                    allowable are costs for ‘‘planning efforts               Response: Section 309.145 provides
      provided on the quarterly Financial                     in the identification, evaluation, and                that Federal IV–D funds are available
      Status Reports is so essential to the                   selection of a new or replacement                     ‘‘for the costs of operating a Tribal IV–
      Tribal IV–D funding mechanism,                          automated data processing computer                    D program under an approved Tribal
      especially adjustment for the prior                     system solution,’’ for the ‘‘operation and            IV–D application.’’ The use of a
      quarter’s actual obligations, less                      maintenance of existing Tribal                        negotiated indirect cost rate could result
      frequent reporting is not feasible.                     automated data processing computer                    in recovery of costs unrelated to the IV–
      However, we have lessened the                           systems,’’ as well as for ‘‘essential office          D program, which is prohibited by
      reporting burden to the minimum                         automation capability,’’ and the                      Section 451 of the Act that expressly
      required by the SF 269A (Short Form),                   ‘‘[e]stablishment of intergovernmental                limits the Congressional appropriation
      rather than the SF 269 (Long Form) that                 agreements with States and Tribes for                 for the IV–D program funds. OCSE is
      was proposed. If any aspect of financial                use of an existing automated computer                 allowing Tribes and Tribal organizations
      reporting raises a concern for a Tribe,                 data processing system.’’ We have                     the option to use the negotiated indirect
      we encourage that Tribe to contact us                   determined that these categories of                   cost rate as a mechanism for the
      immediately.                                            costs, in lieu of guidance regarding the              recovery of allowable indirect costs.
                                                              need for or scope of Tribal IV–D                      However, use of this method does not
      Section 309.145—What Costs Are
                                                              automation, are reasonable at this time.              guarantee allowability of costs, which
      Allowable for Tribal IV–D Programs
                                                              Since high-speed automated data                       must still be attributable to the IV–D
      Carried Out Under § 309.65(a) of This
                                                              processing systems are not currently                  program. Because the title IV–D program
      Part?
                                                              required under these regulations, the                 is an uncapped entitlement program, the
        1. Comment: We received numerous                      costs of designing, developing and                    funds allocated are closely scrutinized.
      comments on automation in Tribal IV–                    implementing such systems are not                     Actual indirect costs—just like actual
      D programs. A majority of the comments                  allowable at this time.                               direct costs—must be demonstrably
      indicated that automation was necessary                    2. Comment: Ten Tribal commenters                  attributable to operation of the IV–D
      and that without the automation, it                     supported the extensive list of allowable             program. This means that Tribal
      would be impossible for Tribes to                       costs. One commenter indicated that                   grantees must be able to demonstrate
      accurately and efficiently process child                this gives the Tribes the opportunity to              that whatever costs are claimed under
      support collections. Many commenters                    continue to develop the necessary                     the IV–D grant are reasonable,
      said that States would not be able to                   infrastructures. One commenter                        necessary, and allocable to the IV–D
      bear the burden of manual processing,                   suggested that in determining whether                 program.
      and that the regulations should require                 costs are reasonable, the Secretary must                 As stated earlier in the preamble, if a
      that Tribal automated systems be                        realize that costs vary by geographic                 Tribe or Tribal organization’s budget
      compatible with State systems. Other                    area.                                                 request includes indirect costs as part of
      commenters suggested that OCSE                             Response: Section 309.145 makes                    its request for Federal funds, such
      develop a skeletal automation system                    Federal IV–D funds available for costs of             requests may be submitted in one of two
      for Tribal IV–D programs, and some                      operating a Tribal IV–D program                       ways. For applications which include
      stated that it was inappropriate to                     provided such costs are determined by                 indirect costs, we have determined that
      require a specific level of program                     the Secretary to be reasonable,                       an applicant may, at its option, submit
      automation. One commenter stated that                   necessary, and allocable to the program.              either documentation of the dollar


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      amount of indirect costs allocable to the               and actual costs attributable to the                  of the Tribal court. Child support may
      IV–D program, or submit its current                     program. The Department may                           not be a normal function that the court
      indirect cost rate negotiated with the                  supplement these required audits                      would perform. Therefore, as provided
      Department of the Interior and a dollar                 through reviews or audits conducted by                in OMB Circular A–87, Attachment B,
      amount of indirect costs based on that                  its own staff.                                        section 23.a.(5), we have determined
      rate. Whichever option an applicant                        We caution Tribes that there is some               that the costs associated with such
      chooses, the applicant’s obligation                     risk involved in using the negotiated                 circumstances are allowable.
      remains the same: Tribal IV–D grantees                  indirect cost rate agreement. As stated                  7. Comment: One State commenter
      are responsible for ensuring that actual                earlier, the Federal statute at 42 U.S.C.             suggested that States receive direct
      expenditures of Federal IV–D funds are                  651 limits the use of Federal IV–D funds              Federal funds to cover costs associated
      directly, demonstrably attributable to                  to the purposes enumerated in that                    with providing technical assistance to
      operation of the IV–D program, i.e., all                section, whether such costs are                       Tribes. Another commenter suggested
      actual costs claimed under the IV–D                     characterized as ‘‘direct’’ or ‘‘indirect’’           that the expenses for technical
      grant must be allocable to the IV–D                     costs. Tribes will want to be careful                 assistance should be borne by the
      program. The Federal statute at 42                      with charges to the indirect cost rate so             funding agency and that the costs
      U.S.C. 651 limits the use of Federal IV–                as not to build up a large audit                      should not be part of the funds awarded
      D funds to the purposes enumerated in                   exception or debt. A Tribe that initially             to a Tribe.
      that section, whether such costs are                    chooses to use the negotiated indirect                   Response: If a State enters into an
      characterized as ‘‘direct’’ or ‘‘indirect’’             cost rate to get its program operational,             agreement to provide services which are
      costs.                                                  may at a later date choose to document                not part of the operation of its IV–D
         If a Tribe’s application includes a                  program specific indirect costs in                    plan, the State may bill the Tribe or
      budget request for indirect costs as well               subsequent years to avoid a large pay-                Tribal organization at rates negotiated
      as direct costs, such request must either               back to the Federal government,                       between the two parties. If the services
      calculate the estimated indirect cost by                disrupting program services to families               provided under such purchase of
      documenting the dollar amount of                        in need.                                              service agreements are reasonable,
      indirect costs allocable to the IV–D                       5. Comment: One commenter stated                   necessary, and allocable to the Tribal
      program, or include the indirect cost                   that it is not equitable that the salaries            IV–D program, the Tribe could claim the
      rate and the estimated indirect costs                   of chief executives are allowable costs               associated costs it has incurred in
      using the negotiated indirect cost rate. If             for Tribes.                                           obtaining the services and would be
      the Tribe elects to submit the actual                      Response: OMB Circular A–87,                       required to participate in those costs,
      estimated costs attributable to the Tribal              Attachment B, Section 23.b, states, ‘‘For             consistent with the required Tribal IV–
      IV–D program, the methodology used to                   Federally-recognized Indian Tribal                    D share.
      arrive at the dollar amount must be                     governments and Councils Of                              8. Comment: Several Tribal
      included with the application.                          Governments (COGs), the portion of                    commenters said that unless funds
         Whichever option a Tribe choose, the                 salaries and expenses directly                        awarded to States under section 469B of
      Tribe’s obligation is the same: Tribal IV–              attributable to managing and operating                the Act, which addresses grants to
      D grantees are responsible for ensuring                 Federal programs by the chief executive               States for access and visitation
      that expenditures of Federal IV–D funds                 and his staff is allowable. ‘‘Following               programs, are opened up to Tribal child
      are directly, demonstrably attributable                 this guidance, we have determined that                support grantees, access and visitation
      to operation of the IV–D program, i.e.,                 Federal IV–D funds may be used for that               activities should be identified as
      all costs claimed under the IV–D grant                  portion of the salaries and expenses of               allowable fundable activities.
      must be allocable to the IV–D program.                  a Tribe’s chief executive and staff which                Response: Grants under section 469B
      Tribal IV–D grant funds may be used for                 are directly attributable to managing and             of the Act are limited by the terms of the
      both direct and indirect costs. However,                operating the Tribal IV–D program.                    statute to States. We do not consider
      only such actual costs that are directly,                  6. Comment: Five Tribal commenters                 access and visitation activities to be
      demonstrably attributable to operation                  supported the provision that the portion              allowable child support activities and
      of the IV–D program are allowable                       of salaries and expenses of Tribal judges             therefore, expenditures related to access
      under the Federal statute.                              and staff that is directly related to Tribal          and visitation are not eligible for IV–D
         We remind Tribal grantees that even                  IV–D case program activities is an                    funding under § 309.145.
      if the Tribe has an approved indirect                   allowable cost because Tribal IV–D
      cost rate agreement, any indirect costs                 programs create additional and                        Section 309.150—What Start-Up Costs
      must be allowable under the program                     unprecedented workload increases for                  Are Allowable for Tribal IV–D Programs
      statute, regulations, OMB circulars and                 Indian tribunals. Six State commenters                Carried Out Under § 309.65(b) of This
      Federal appropriations law. Any                         stated that it is not equitable to fund               Part?
      unallowable costs that are recovered                    Tribal court costs but not those of State                1. Comment: Seven Tribal
      under any agreement are also                            courts.                                               commenters said that a ceiling should
      unallowable and subject to                                 Response: We have revised                          not be placed on start-up expenses and
      disallowance. The indirect costs must                   § 309.145(k) to permit Federal IV–D                   that in some instances the limit will be
      be reasonable, necessary, allocable and                 funds to be used for the portion of                   inadequate. One commenter suggested
      in compliance with statute, rules,                      salaries and expenses of tribunals and                that exceptions to this limit be allowed
      regulations and OMB circulars.                          staff directly related to required Tribal             if a Tribe can prove reasonable need.
         In addition, under § 309.160 of this                 IV–D program activities. We recognize                    Response: Based on the experiences of
      final regulation, Tribal IV–D programs                  that, at this initial stage of Tribal IV–D            currently operating Tribal IV–D
      will be audited as a major program in                   programs, operation of programs and                   programs, we continue to believe that a
      accordance with section 215 (c) of OMB                  associated program requirements will                  Tribe or Tribal organization that
      Circular A–133. The annual A–133                        result in increased workloads for some                receives start-up funding can generally
      audits will be used to reconcile the                    Indian tribunals. Unlike States, Tribes               be expected to be ready to operate a full
      grant award. Adjustments will be made                   may not have a tax base or the resources              Tribal IV–D program within two years
      for any differences between estimated                   to enable them to fund these activities               and that the Federal share of start-up


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                          Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules and Regulations                                        16671

      costs should generally not exceed                       the development of programs that will                 legal counsel for indigent defendants
      $500,000. However, to accommodate                       eventually satisfy the requirements of                and guardian ad litem costs with IV–D
      extraordinary and limited circumstances                 § 309.65(a), we have determined that                  program funding.
      we have provided, at § 309.16(c), an                    requiring a non-Federal share would not                 Response: To the extent that parties to
      opportunity for Tribes and Tribal                       be productive.                                        IV–D cases incur legal costs, such costs
      organizations to request additional time                                                                      are personal and not reasonable,
                                                              Subpart E—Accountability and
      and/or funding for start-up Tribal IV–D                                                                       necessary, or allocable to the IV–D
                                                              Monitoring
      programs.                                                                                                     program itself. Similarly, costs
         2. Comment: Three Tribal                             Section 309.155—What Uses of Tribal                   associated with guardian ad litem are
      commenters suggested that the $500,000                  IV–D Program Funds Are Not                            not reasonable, necessary or allocable
      limit should be exclusive of indirect                   Allowable?                                            IV–D program costs, but are costs
      costs.                                                     1. Comment: Three Tribal                           appropriately absorbed by the Tribal
         Response: We have determined that                                                                          government or the individuals involved.
                                                              commenters said that Tribes should be
      the $500,000 limit for start-up funding
                                                              allowed to use IV–D funds to build                    Subpart F—Statistical and Narrative
      is not exclusive of indirect costs.
                                                              offices for their programs where none                 Reporting Requirements
      Section 309.150(d) provides that Federal
                                                              are available. One of those commenters
      funds are available for reasonable,                                                                           Section 309.170—What Statistical and
                                                              said a certain percentage should be
      necessary, and allocable costs with a                                                                         Narrative Reporting Requirements
                                                              allowed for major renovation.
      direct correlation to the initial                          Response: Grant funds can be used for              Apply to Tribal IV–D Programs?
      development of a Tribal IV–D program,                   construction and major renovations only
      consistent with the cost principles in                                                                          1. Comment: Two Tribal commenters
                                                              if Congress specifically authorizes such
      OMB Circular A–87, and approved by                                                                            pointed out that statistical and narrative
                                                              use. The child support statute does not
      the Secretary. As stated earlier in the                                                                       reporting is not required by statute.
                                                              provide for this use.
      preamble, if a Tribe or Tribal                             Although we don’t believe it is                      Response: Although statistical and
      organization’s budget for start-up                      necessary to include the definition of                narrative reporting is not expressly
      funding includes a request for indirect                 construction in the regulation we                     mandated in section 455(f) of the Act,
      costs, a mechanism parallel to that                     thought it may be useful to provide the               we have determined that the
      described at § 309.15(a)(3) must be used.               definition here. It has been our                      requirements in § 309.170 are essential
      Applicants for start-up funding should                  experience that current grantees                      to ensuring that Tribes and Tribal
      submit such estimates of indirect costs                 sometimes include unallowable                         organizations operate IV–D programs
      as either a product of documentation                    construction costs in budget requests.                that meet the mandated program
      showing the dollar amount of indirect                   The following definitions should be                   objectives specified in the statute, i.e.,
      costs specifically allocable to the IV–D                helpful.                                              establishment of paternity,
      program or as a product of their current                   Construction means the construction                establishment, modification, and
      negotiated indirect cost rate. The                      of new buildings or the modernization                 enforcement of support orders, and
      methodology used to arrive at these                     of, or completion of shell space in                   location of noncustodial parents. Efforts
      amounts must be included with the                       existing buildings (including the                     were made to minimize the reporting
      application.                                            installation of fixed equipment, but                  requirements to those considered
         3. Comment: One commenter asked if                   excluding the cost of land acquisition                critical for program tracking, evaluation
      ‘‘start-up’’ monies are an ‘‘add-on’’ to                and off-site improvements). A trailer or              and monitoring.
      the amount a Tribal IV–D program will                   modular unit is considered construction
      receive in direct funding or if they are                                                                      List of Subjects
                                                              or real property when the unit and its
      stand-alone funds for the first two years.              installation are designed or planned to               45 CFR Part 286
         Response: Sections 309.16, 309.65(b)                 be installed permanently at a given
      and 309.145 address funding available                                                                           Administrative practice and
                                                              location so as to seem fixed to the land              procedure, Day Care, Employment,
      for initial Tribal IV–D program                         as a permanent structure or
      development. Tribes that are operating                                                                        Grant programs—social programs,
                                                              appurtenance thereto.                                 Indian Tribes, Loan programs—social
      comprehensive child support                                Real property means land, including
      enforcement programs under § 309.65(a)                                                                        programs, Manpower training programs,
                                                              land improvements, structures and
      have moved beyond the initial start-up                                                                        Penalties, Public Assistance programs,
                                                              appurtenances thereto, but excludes
      stage and are not eligible for start-up                                                                       Reporting and recordkeeping
                                                              movable machinery and equipment.
      funds. The fact that a Tribe may have                      2. Comment: One Tribal commenter                   requirements, Vocational education.
      received start-up funding under                         said that the Tribes need financial                   45 CFR Part 302
      § 309.65(b) has no bearing on any                       supplements for the cost of jailing
      subsequent application for funding                      noncustodial parents.                                   Child Support, grant program—social
      under § 309.65(a) for the operation of a                   Response: If jail is the penalty for               programs. Reporting and recordkeeping
      comprehensive IV–D program. Thus,                       violations of Tribal law, associated                  requirements.
      start-up funds are stand-alone funds.                   expenses are considered general Tribal                45 CFR Part 309
         4. Comment: One commenter                            expenses for which Federal IV–D
      suggested that the requirement for a                    funding is not available. Establishment                 Child support, grant program—social
      match should be waived during the                       and operation of penalties for violations             programs, Indians, Native Americans.
      start-up phase.                                         of Tribal law is solely the responsibility            45 CFR Part 310
         Response: The final regulation does                  of Tribal governments. These are
      not require a non-Federal share for                     governmental costs incurred as part of                  Child support, grant program—social
      Tribal IV–D start-up grants under                       administering a Tribal government and                 programs, Indians, Native Americans.
      §§ 309.16 and 309.65(b). These grants                   are not appropriately borne by the                    (Catalog of Federal Domestic Assistance
      are for the initial development of Tribal               Federal IV–D funds.                                   Programs No: 93.558 TANF Programs—Tribal
      IV–D programs. Because the purpose of                      3. Comment: One commenter said that                Family Assistance Grants; 93.563 Child
      the start-up grants is to assist Tribes in              is it critical that Tribes are able to cover          Support Enforcement Program)



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      16672               Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules and Regulations

        Dated: August 29, 2003.                               309.10 Who is eligible to apply for and               Subpart D—Tribal IV–D Program Funding
      Wade F. Horn,                                               receive Federal funding to operate a              309.125 On what basis is Federal funding of
                                                                  Tribal IV–D program?                                  Tribal IV–D programs determined?
      Assistant Secretary for Children and Families.
        Approved December 19, 2003.                           Subpart B—Tribal IV–D Program                         309.130 How will Tribal IV–D programs be
                                                              Application Procedures                                    funded and what forms are required?
      Tommy G. Thompson,                                                                                            309.135 What requirements apply to
      Secretary, Department of Health and Human               309.15 What is a Tribal IV–D program
                                                                                                                        funding, obligating and liquidating
      Services.                                                   application?
                                                              309.16 What rules apply to start-up                       Federal title IV–D grant funds?
      I For the reasons discussed in the                          funding?                                          309.145 What costs are allowable for Tribal
      preamble, title 45 chapters II and III of               309.20 Who submits a Tribal IV–D program                  IV–D programs carried out under
                                                                  application and where?                                § 309.65(a) of this part?
      the Code of Federal Regulations are
                                                              309.35 What are the procedures for review             309.150 What start-up costs are allowable
      amended as follows:                                                                                               for Tribal IV–D programs?
                                                                  of a Tribal IV–D program application,
                                                                  plan or plan amendment?                           309.155 What uses of Tribal IV–D program
      PART 286—TRIBAL TANF                                                                                              funds are not allowable?
      PROVISIONS                                              309.40 What is the basis for disapproval of
                                                                  a Tribal IV–D program application, plan           Subpart E—Accountability and Monitoring
      I 1. The authority citation for part 286                    or plan amendment?
                                                              309.45 When and how may a Tribe or                    309.160 How will OCSE determine if Tribal
      continues to read as follows:                                                                                     IV–D program funds are appropriately
                                                                  Tribal organization request
          Authority: 42 U.S.C. 612.                               reconsideration of a disapproval action?              expended?
                                                              309.50 What are the consequences of                   309.165 What recourse does a Tribe or
      I 2. In § 286.155, paragraph (b)(1) is                      disapproval of a Tribal IV–D program                  Tribal organization have to dispute a
      revised to read as follows:                                 application, plan or plan amendment?                  determination to disallow Tribal IV–D
                                                                                                                        program expenditures?
      § 286.155 May a Tribe condition eligibility             Subpart C—Tribal IV–D Plan Requirements
      for Tribal TANF assistance on assignment                                                                      Subpart F—Statistical and Narrative
                                                              309.55 What does this subpart cover?                  Reporting Requirements
      of child support to the Tribe?                          309.60 Who is responsible for
      *     *     *    *     *                                    administration of the Tribal IV–D                 309.170 What statistical and narrative
        (b) * * *                                                 program under the Tribal IV–D plan?                   reporting requirements apply to Tribal
                                                              309.65 What must a Tribe or Tribal                        IV–D programs?
        (1) Procedures for ensuring that
                                                                  organization include in a Tribal IV–D               Authority: 42 U.S.C. 655(f), 1302.
      assigned child support collections in                       plan in order to demonstrate capacity to
      excess of the amount of Tribal TANF                         operate a Tribal IV–D program?
      assistance received by the family will                                                                        Subpart A—Tribal IV–D Program:
                                                              309.70 What provisions governing                      General Provisions
      not be retained by the Tribe; and                           jurisdiction must a Tribe or Tribal
      *     *     *    *     *                                    organization include in a Tribal IV–D             § 309.01   What does this part cover?
                                                                  plan?
                                                              309.75 What administrative and                           (a) The regulations in this part
      PART 302—STATE PLAN
                                                                  management procedures must a Tribe or             prescribe the rules for implementing
      REQUIREMENTS
                                                                  Tribal organization include in a Tribal           section 455(f) of the Social Security Act.
      I 3. The authority citation for part 302                    IV–D plan?                                        Section 455(f) of the Act authorizes
                                                              309.80 What safeguarding procedures must              direct grants to Indian Tribes and Tribal
      continues to read as follows:                               a Tribe or Tribal organization include in         organizations to operate child support
        Authority: 42 U.S.C. 651 through 658, 660,                a Tribal IV–D plan?                               enforcement programs.
      664, 666, 667, 1302, 1396a(a)(25),                      309.85 What records must a Tribe or Tribal
      1396b(d)(2), 1396b(o), 1396b(p), 1396(k).                   organization agree to maintain in a Tribal           (b) These regulations establish the
                                                                  IV–D plan?                                        requirements that must be met by Indian
      I 4. The heading and paragraph (a) of
                                                              309.90 What governing Tribal law or                   Tribes and Tribal organizations to be
      § 302.36 are revised to read as follows:                    regulations must a Tribe or Tribal                eligible for grants under section 455(f) of
      § 302.36 Provision of services in interstate                organization include in a Tribal IV–D             the Act. They establish requirements
      and intergovernmental IV–D cases.                           plan?                                             for: Tribal IV–D plan and application
                                                              309.95 What procedures governing the                  content, submission, approval, and
        (a) The State plan shall provide that:                    location of custodial and noncustodial
        (1) The State will extend the full                        parents must a Tribe or Tribal
                                                                                                                    amendment; program funding; program
      range of services available under its IV–                   organization include in a Tribal IV–D             operation; uses of funds; accountability;
      D plan to any other State in accordance                     plan?                                             reporting; and other program
      with the requirements set forth in                      309.100 What procedures for the                       requirements and procedures.
      § 303.7 of this chapter; and                                establishment of paternity must a Tribe
                                                                  or Tribal organization include in a Tribal        § 309.05   What definitions apply to this
        (2) The State will extend the full                                                                          part?
                                                                  IV–D plan?
      range of services available under its IV–               309.105 What procedures governing child                  The following definitions apply to
      D plan to all Tribal IV–D programs,                         support guidelines must a Tribe or Tribal         this part:
      including promptly opening a case                           organization include in a Tribal IV–D
      where appropriate.                                          plan?
                                                                                                                       IV–D services are the services that are
                                                              309.110 What procedures governing income              authorized or required for the
      *     *     *     *    *                                                                                      establishment of paternity,
                                                                  withholding must a Tribe or Tribal
      I 5. A new part 309 is added:                               organization include in a Tribal IV–D             establishment, modification, and
                                                                  plan?                                             enforcement of support orders, and
      PART 309—TRIBAL CHILD SUPPORT                           309.115 What procedures governing the                 location of noncustodial parents under
      ENFORCEMENT (IV–D) PROGRAM                                  distribution of child support must a              title IV–D of the Act, this rule, the Tribal
                                                                  Tribe or Tribal organization include in a         IV–D plan and program instructions
      Subpart A—Tribal IV–D Program: General                      Tribal IV–D plan?
      Provisions                                              309.120 What intergovernmental
                                                                                                                    issued by the Department.
      Sec.                                                        procedures must a Tribe or Tribal                    ACF means the Administration for
      309.01 What does this part cover?                           organization include in a Tribal IV–D             Children and Families, U.S. Department
      309.05 What definitions apply to this part?                 plan?                                             of Health and Human Services.


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                          Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules and Regulations                                         16673

         Act means the Social Security Act,                     Program development plan means a                       (1) A Tribe or Tribal organization’s
      unless otherwise specified.                             document detailing the specific steps a               request for waiver of paragraph (a) or (b)
         Assistant Secretary means the                        Tribe or Tribal organization will take to             of this section must include
      Assistant Secretary for Children and                    come into compliance with the                         documentation sufficient to demonstrate
      Families, Department of Health and                      requirements of § 309.65(a), and the                  that meeting the requirement is not
      Human Services.                                         timeframe associated with each step.                  necessary. Such documentation must
         Central office means the Office of                     Regional office refers to one of the                state:
      Child Support Enforcement.                              regional offices of the Administration                   (i) That the Tribe or Tribal
         Child support order and child support                for Children and Families.                            organization otherwise complies with
      obligation mean a judgment, decree, or                    Secretary means the Secretary of the                the requirements established in subpart
      order, whether temporary, final or                      Department of Health and Human                        C of these regulations;
      subject to modification, issued by a                    Services or designee.                                    (ii) That the Tribe or Tribal
      court of competent jurisdiction, tribunal                 TANF means the Temporary                            organization has the administrative
      or an administrative agency for the                     Assistance for Needy Families program                 capacity to support operation of a child
      support and maintenance of a child,                     as found at section 401 et seq. of the
                                                                                                                    support program under the
      including a child who has attained the                  Social Security Act (42 U.S.C. 601 et
                                                                                                                    requirements of this part;
      age of majority under the law of the                    seq.).
                                                                Title IV–D refers to the title of the                  (iii) That the Tribal IV–D program will
      issuing jurisdiction, or of the parent                                                                        be cost effective; and
                                                              Social Security Act that authorizes the
      with whom the child is living, which                                                                             (iv) The number of children under the
                                                              Child Support Enforcement Program,
      provides for monetary support, health                                                                         jurisdiction of the Tribe or Tribal
                                                              including the Tribal Child Support
      care, arrearages, or reimbursement, and                 Enforcement Program.                                  organization.
      which may include related costs and                       Tribal IV–D agency means the                           (2) A Tribe or Tribal organization’s
      fees, interest and penalties, income                    organizational unit in the Tribe or Tribal            request for a waiver may be approved if
      withholding, attorneys’ fees, and other                 organization that has the authority for               the Tribe or Tribal organization
      relief.                                                 administering or supervising the Tribal               demonstrates to the satisfaction of the
         The Department means the U.S.                        IV–D program under section 455(f) of                  Secretary that it can provide the services
      Department of Health and Human                          the Act.                                              required under 45 CFR part 309 in a cost
      Services.                                                 Tribal custom means unwritten law                   effective manner even though the
         Income means any periodic form of                    having the force and effect of law within             population subject to Tribal jurisdiction
      payment due to an individual regardless                 a particular Tribe.                                   includes fewer than 100 children.
      of source, except that a Tribe may                        Tribal organization means any legally
      expressly decide to exclude per capita,                 established organization of Indian                    Subpart B—Tribal IV–D Program
      trust, or Individual Indian Money (IIM)                 Tribes which is sanctioned or chartered               Application Procedures
      payments.                                               as a single governing body representing
                                                                                                                    § 309.15 What is a Tribal IV–D program
         Indian means a person who is a                       two or more Indian Tribes.                            application?
      member of an Indian Tribe.
         Indian Tribe and Tribe mean any                      § 309.10 Who is eligible to apply for and                (a) Initial application. The initial
                                                              receive Federal funding to operate a Tribal           application for funding under
      Indian or Alaska Native Tribe, band,                    IV–D program?
      nation, pueblo, village, or community                                                                         § 309.65(a) may be submitted at any
                                                                The following Tribes or Tribal                      time. The initial application must
      that the Secretary of the Interior
                                                              organizations are eligible to apply to                include:
      acknowledges to exist as an Indian Tribe
                                                              receive Federal funding to operate a                     (1) Standard Form (SF) 424,
      and includes in the list of Federally-
                                                              Tribal IV–D program meeting the                       ‘‘Application for Federal Assistance;’’
      recognized Indian Tribal governments
                                                              requirements of this part:                               (2) SF 424A, ‘‘Budget Information—
      as published in the Federal Register                      (a) An Indian Tribe with at least 100
      pursuant to 25 U.S.C. 479a–1.                                                                                 Non-Construction Programs,’’ including
                                                              children under the age of majority as                 the following information:
         Location means information                           defined by Tribal law or code, in the
      concerning the physical whereabouts of                                                                           (i) A quarter-by-quarter estimate of
                                                              population subject to the jurisdiction of
      the noncustodial parent, or the                                                                               expenditures for the funding period;
                                                              the Tribal court or administrative
      noncustodial parent’s employer(s), and                                                                        and
                                                              agency.
      other sources of income or assets, as                     (b) A Tribal organization that has been                (ii) Notification of whether the Tribe
      appropriate, which is sufficient and                    designated by two or more Indian Tribes               or Tribal organization is requesting
      necessary to take the next appropriate                  to operate a Tribal IV–D program on                   funds for indirect costs and if so, an
      action in a case.                                       their behalf, with a total of at least 100            election of a method under paragraph
         Non-cash support is support provided                 children under the age of majority as                 (a)(3) of this section to calculate
      to a family in the nature of goods and/                 defined by Tribal laws or codes, in the               estimated indirect costs; and
      or services, rather than in cash, but                   population of the Tribes subject to the                  (iii) A narrative justification for each
      which, nonetheless, has a certain and                   jurisdiction of the Tribal court (or                  cost category on the form; and either:
      specific dollar value.                                  courts) or administrative agency (or                     (iv) A statement that the Tribe or
         Notice of Disapproval refers to the                  agencies).                                            Tribal organization has or will have the
      written notification from the                             (c) A Tribe or Tribal organization that             non-Federal share of program
      Department that the Tribal IV–D                         can demonstrate to the satisfaction of                expenditures available, as required; or
      application, IV–D plan, or plan                         the Secretary the capacity to operate a                  (v) A request for a waiver of the non-
      amendment fails to meet the                             child support enforcement program and                 Federal share in accordance with
      requirements for approval under                         provide justification for operating a                 § 309.130(e), if appropriate.
      applicable Federal statutes and                         program with less than the minimum                       (3) If the Tribe or Tribal organization
      regulations.                                            number of children may be granted a                   requests funding for indirect costs,
         OCSE refers to the Federal Office of                 waiver of paragraph (a) or (b) of this                estimated indirect costs may be
      Child Support Enforcement.                              section as appropriate.                               submitted either by:


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        (i) Including documentation of the                    to the IV–D program including the                     specified at paragraph (c) of this section
      dollar amount of indirect costs allocable               methodology used to arrive at these                   and § 309.150 if—
      to the IV–D program; or                                 amounts; or                                             (i) The Tribe or Tribal organization
        (ii) Submission of its current indirect                  (ii) Submission of its current indirect            demonstrates to the satisfaction of the
      cost rate negotiated with the Department                cost rate negotiated with the Department              Secretary that a specific amount of
      of Interior and the estimated amount of                 of Interior and the amount of estimated               additional funds for a specific purpose
      indirect costs calculated using the                     indirect costs using that rate.                       or purposes will result in satisfaction of
      negotiated cost rate.                                      (iii) The amount of indirect costs must            the requirements specified in § 309.65(a)
        (4) The Tribal IV–D plan. The initial                 be included within the limit of $500,000              which the Tribe or Tribal organization
      application must include a                              specified in paragraph (c) of this                    otherwise will be unable to meet; and
      comprehensive statement identifying                     section.                                                (ii) The Tribe or Tribal organization
      how the Tribe or Tribal organization is                    (4) With respect to each requirement               demonstrates to the satisfaction of the
      meeting the requirements of subpart C                   in § 309.65(a) that the Tribe or Tribal               Secretary that it has satisfied every
      of this part and that describes the                     organization currently meets, a                       applicable reporting requirement.
      capacity of the Tribe or Tribal                         description of how the Tribe or Tribal                  (d) If a Tribe or Tribal organization
      organization to operate a IV–D program                  organization satisfies the requirement;               receives start-up funding based on
      which meets the objectives of title IV–                 and                                                   submission and approval of a Tribal IV–
      D of the Act, including establishment of                   (5) With respect to each requirement               D application which includes a program
      paternity, establishment, modification,                 in § 309.65(a) that the Tribe or Tribal               development plan under § 309.65(b), a
      and enforcement of support orders, and                  organization does not currently meet, a               progress report that describes
      location of noncustodial parents.                       program development plan which                        accomplishments to date in carrying out
        (b) Additional application                            demonstrates to the satisfaction of the               the plan must be submitted with the
      requirement for Tribal organizations.                   Secretary that the Tribe or Tribal                    next annual refunding request.
      The initial and subsequent annual                       organization has the capacity and will
      budget submissions of a Tribal                                                                                § 309.20 Who submits a Tribal IV–D
                                                              have in place a Tribal IV–D program                   program application and where?
      organization must document that each                    that will meet the requirements outlined
      participating Tribe authorizes the Tribal                                                                       (a) The authorized representative of
                                                              in § 309.65(a), within a reasonable,
      organization to operate a Tribal IV–D                                                                         the Tribe or Tribal organization must
                                                              specific period of time, not to exceed
      program on its behalf.                                                                                        sign and submit the Tribal IV–D
                                                              two years. The Secretary must approve
        (c) Annual budget submission.                                                                               program application.
                                                              the program development plan.
      Following the initial funding period, the                                                                       (b) Applications must be submitted to
                                                              Disapproval of a program development
      Tribe or Tribal organization operating a                                                                      the Office of Child Support
                                                              plan is not subject to administrative
      IV–D program must submit annually                                                                             Enforcement, Attention: Tribal Child
                                                              appeal.
      Form SF 424A, including all the                                                                               Support Enforcement Program, 370
                                                                 (b) The process for approval and
      necessary accompanying information                                                                            L’Enfant Promenade, SW., Washington,
                                                              disapproval of applications for start-up
      and documentation described in                                                                                DC 20447, with a copy to the
                                                              funding under this section is found in
      paragraphs (a)(2) and (a)(3) of this                                                                          appropriate regional office.
                                                              §§ 309.35, 309.40, 309.45, and 309.50. A
      section.                                                disapproval of an application for start-              § 309.35 What are the procedures for
        (d) Plan Amendments. Plan                             up funding is not subject to                          review of a Tribal IV–D program application,
      amendments must be submitted in                         administrative appeal.                                plan or plan amendment?
      accordance with the requirements of                        (c) Federal funding for start-up costs                (a) The Secretary will promptly
      § 309.35(e).                                            is limited to $500,000, which must be                 review a Tribal IV–D program
      § 309.16 What rules apply to start-up                   obligated and liquidated within two                   application, plan or plan amendment to
      funding?                                                years after the first day of the quarter              determine whether it conforms to the
         (a) The application for start-up                     after the start-up application was                    requirements of the Act and these
      funding under § 309.65(b) must include:                 approved. In extraordinary                            regulations. Not later than the 90th day
         (1) Standard Form (SF) 424,                          circumstances, the Secretary will                     following the date on which the Tribal
      ‘‘Application for Federal Assistance’;                  consider a request to extend the period               IV–D application, plan or plan
         (2) SF 424A, ‘‘Budget Information—                   of time during which start-up funding                 amendment is received by the Secretary,
      Non-Construction Programs,’’ including                  will be available and/or to increase the              action will be taken unless additional
      the following information:                              amount of start-up funding provided.                  information is needed. If additional
         (i) A quarter-by-quarter estimate of                 Denial of a request to extend the time                information is needed from the Tribe or
      expenditures for the start-up period;                   during which start-up funding will be                 Tribal organization, the Secretary will
         (ii) Notification of whether the Tribe               available or for an increase in the                   promptly notify the Tribe or Tribal
      or Tribal organization is requesting                    amount of start-up funding is not                     organization.
      funds for indirect costs and, if so, an                 subject to administrative appeal.                        (b) The Secretary will take action on
      election of a method to calculate                          (1) The Secretary may grant a no-cost              the application, plan or plan
      estimated indirect costs under                          extension of time if the Tribe or Tribal              amendment within 45 days of receipt of
      paragraph (a)(3) of this section; and                   organization demonstrates to the                      any additional information requested
         (iii) A narrative justification for each             satisfaction of the Secretary that the                from the Tribe or Tribal organization.
      cost category on the form;                              extension will result in satisfaction of                 (c) Determinations as to whether the
         (3) If the Tribe or Tribal organization              each requirement established in                       Tribal IV–D plan, including plan
      requests funding for indirect costs as                  § 309.65(a) by the grantee and                        amendments, originally meets or
      part of its application for Federal start-              completion of the program development                 continues to meet the requirements for
      up funds, estimated indirect costs may                  plan required under § 309.65(b)(2).                   approval are based on applicable
      be submitted either by:                                    (2) The Secretary may grant an                     Federal statutes, regulations and
         (i) Including documentation of the                   increase in the amount of Federal start-              instructions applicable to Tribal IV–D
      dollar amount of indirect costs allocable               up funding provided beyond the limit                  programs. Guidance may be furnished to


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      assist in the interpretation of the                     the Secretary will request the necessary              remains in effect pending the
      regulations.                                            information.                                          reconsideration under this part.
         (d) After approval of the original                                                                           (g) Disapproval of start-up funding, a
      Tribal IV–D program application, all                    § 309.45 When and how may a Tribe or                  request for waiver of the 100-child rule,
                                                              Tribal organization request reconsideration
      relevant changes required by new                                                                              and a request for waiver of the non-
                                                              of a disapproval action?
      Federal statutes, rules, regulations, and                                                                     Federal Tribal share is not subject to
      Department interpretations are required                    (a) Except as specified under                      administrative appeal.
      to be submitted so that the Secretary                   paragraphs (g) and (h) of this section, a               (h) Where the Secretary believes an
      may determine whether the plan                          Tribe or Tribal organization may request              approved Tribal IV–D plan should be
      continues to meet Federal requirements                  reconsideration of the disapproval of a               disapproved, he will notify the Tribe of
      and policies.                                           Tribal IV–D application, plan or plan                 his intent to disapprove the plan. If the
         (e) If a Tribe or Tribal organization                amendment by filing a written Request                 Tribe waives its right to reconsideration
      intends to make any substantial or                      for Reconsideration to the Secretary                  under this section, the Tribe may
      material change in any aspect of the                    within 60 days of the date of the Notice              request a pre-decision hearing with 60
      Tribal IV–D program, a Tribal IV–D plan                 of Disapproval.                                       days of the date of the Notice of Intent
      amendment must be submitted at the                         (b) The Request for Reconsideration                to Disapprove the plan. The hearing will
      earliest reasonable time for approval                   must include:                                         utilize the procedures at 45 CFR part
      under this section. The plan amendment                     (1) All documentation that the Tribe               213.
      must describe and, as appropriate,                      or Tribal organization believes is
                                                              relevant and supportive of its                        § 309.50 What are the consequences of
      document the changes the Tribe or                                                                             disapproval of a Tribal IV–D program
      Tribal organization proposes to make to                 application, plan or plan amendment;                  application, plan or plan amendment?
      its IV–D plan, consistent with the                      and
                                                                                                                      (a) If an application or plan submitted
      requirements of applicable statutes and                    (2) A written response to each ground
                                                                                                                    pursuant to § 309.15 is disapproved, the
      regulations.                                            for disapproval identified in the Notice
                                                                                                                    Tribe or Tribal organization will receive
         (f) The effective date of a plan or plan             of Disapproval, indicating why the Tribe
                                                                                                                    no funding under § 309.65(a) or this part
      amendment may not be earlier than the                   or Tribal organization believes its
                                                                                                                    until a new application or plan is
      first day of the fiscal quarter in which                application, plan or plan amendment
                                                                                                                    submitted and approved.
      an approvable plan or plan amendment                    conforms to the requirements for                        (b) If a IV–D plan amendment is
      is submitted.                                           approval specified in applicable Federal              disapproved, there is no funding for the
                                                              statutes, regulations and office                      activity proposed in the plan
      § 309.40 What is the basis for disapproval              issuances; and
      of a Tribal IV–D program application, plan                                                                    amendment.
      or plan amendment?                                         (3) Whether or not the Tribe or Tribal               (c) A Tribe or Tribal organization
                                                              organization requests a meeting or                    whose application, plan or plan
         (a) A IV–D application, plan, or plan
                                                              conference call with the Secretary.                   amendment has been disapproved may
      amendment will be disapproved if:
         (1) The Secretary determines that the                   (c) After receiving a Request for                  reapply at any time.
      application, plan, or plan amendment                    Reconsideration that includes a request
      fails to meet or no longer meets one or                 for a conference call or meeting, OCSE                Subpart C—Tribal IV–D Plan
      more of the requirements set forth in                   will determine whether to hold a                      Requirements
      this part or any other applicable Federal               conference call or a meeting with the
                                                                                                                    § 309.55   What does this subpart cover?
      regulations, statutes and implementing                  Tribe or Tribal organization to discuss
                                                              the reasons for disapproval of the                      This subpart defines the Tribal IV–D
      instructions;                                                                                                 plan provisions that are required to
         (2) The Secretary determines that                    application, plan, or plan amendment as
                                                              well as the Tribe or Tribal organization’s            demonstrate that a Tribe or Tribal
      required Tribal laws, code, regulations,                                                                      organization has the capacity to operate
      and procedures are not in effect; and/or                response. The Secretary will notify the
                                                              Tribe or Tribal organization of the date              a child support enforcement program
         (3) The Secretary determines that the                                                                      meeting the objectives of title IV–D of
      application, plan, or plan amendment is                 and time of the conference call or
                                                              meeting.                                              the Act and these regulations, including
      not complete, after the Tribe or Tribal                                                                       establishment of paternity,
      organization has had the opportunity to                    (d) A conference call or meeting
                                                              under § 309.45(c) shall be held not less              establishment, modification, and
      submit the necessary information.                                                                             enforcement of support orders, and
         (b)(1) Except as provided in paragraph               than 30 days nor more than 60 days
                                                              after the date the notice of such call or             location of noncustodial parents.
      (b)(2) of this section and § 309.45(h) of
      this part, a written Notice of                          meeting is furnished to the Tribe or                  § 309.60 Who is responsible for
      Disapproval of the Tribal IV–D program                  Tribal organization, unless both parties              administration of the Tribal IV–D program
      application, plan, or plan amendment,                   agree in writing to another time.                     under the Tribal IV–D plan?
      as applicable, will be sent to the Tribe                   (e) The Secretary will make a written                (a) Under the Tribal IV–D plan, the
      or Tribal organization upon the                         determination affirming, modifying, or                Tribe or Tribal organization shall
      determination that any of the conditions                reversing disapproval of a Tribal IV–D                establish or designate an agency to
      of paragraph (a) of this section apply.                 program application, plan, or plan                    administer the Tribal IV–D plan. That
      The Notice of Disapproval will include                  amendment within 60 days after the                    agency shall be referred to as the Tribal
      the specific reason(s) for disapproval.                 conference call or meeting is held, or                IV–D agency.
         (2) Where the Secretary believes an                  within 60 days after the request for                    (b) The Tribe or Tribal organization is
      approved Tribal IV–D plan should be                     reconsideration that does not include a               responsible and accountable for the
      disapproved, he will notify the Tribe of                request for a meeting. This                           operation of the Tribal IV–D program.
      his intent to disapprove the plan.                      determination shall be the final decision             Except where otherwise provided in this
         (c) If the application, plan or plan                 of the Secretary.                                     part, the Tribal IV–D agency need not
      amendment is incomplete and fails to                       (f) The Secretary’s determination that             perform all the functions of the Tribal
      provide enough information to make a                    a Tribal IV–D application, new plan or                IV–D program, so long as the Tribe or
      determination to approve or disapprove,                 plan amendment is not approvable                      Tribal organization ensures that all


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      approved functions are carried out                         (11) Procedures for income                         under the Tribal IV–D program is
      properly, efficiently and effectively.                  withholding as specified under                        covered by a bond or insurance
        (c) If the Tribe or Tribal organization               § 309.110;                                            sufficient to cover all losses.
      delegates any of the functions of the                      (12) Procedures for the distribution of               (c) Procedures under which notices of
      Tribal IV–D program to another Tribe, a                 child support collections as specified                support collected, itemized by month of
      State, and/or another agency or entity                  under § 309.115;                                      collection, are provided to families
      pursuant to a cooperative arrangement,                     (13) Procedures for intergovernmental              receiving services under the Tribal IV–
      contract, or Tribal resolution, the Tribe               case processing as specified under                    D program at least once a year. In
      or Tribal organization is responsible for               § 309.120; and                                        addition, a notice must be provided at
      securing compliance with the                               (14) Tribally-determined performance               any time to either the custodial or
      requirements of the Tribal IV–D plan by                 targets for paternity establishment,                  noncustodial parent upon request.
      such Tribe, State, agency or entity. The                support order establishment, amount of                   (d) A certification that for each year
      Tribe or Tribal organization is                         current support to be collected, amount               during which the Tribe or Tribal
      responsible for submitting copies and                   of past due support to be collected, and              organization receives or expends funds
      appending to the Tribal IV–D plan any                   any other performance measures a Tribe                pursuant to section 455(f) of the Act and
      agreements, contracts, or Tribal                        or Tribal organization may want to                    this part, it shall comply with the
      resolutions between the Tribal IV–D                     submit.                                               provisions of chapter 75 of Title 31 of
      agency and a Tribe, State, other agency                    (b) If a Tribe or Tribal organization              the United States Code (the Single Audit
      or entity.                                              currently is unable to satisfy any or all             Act of 1984, Pub. L. 98–502, as
                                                              of the requirements specified in                      amended) and OMB Circular A–133.
      § 309.65 What must a Tribe or Tribal                    paragraph (a) of this section:                           (e) If the Tribe or Tribal organization
      organization include in a Tribal IV–D plan in              (1) It may demonstrate capacity to                 intends to charge an application fee or
      order to demonstrate capacity to operate a              operate a Tribal IV–D program meeting                 recover costs in excess of the fee, the
      Tribal IV–D program?                                    the objectives of title IV–D of the Act               Tribal IV–D plan must provide that:
         (a) A Tribe or Tribal organization                   and these regulations by submission of                   (1) The application fee must be
      demonstrates capacity to operate a                      an application for start-up funding as                uniformly applied by the Tribe or Tribal
      Tribal IV–D program meeting the                         required by § 309.16(a) of this part.                 organization and must be:
      objectives of title IV–D of the Act and                    (2) The Secretary may cease start-up                  (i) A flat amount not to exceed $25.00;
      these regulations by submission of a                    funding to a Tribe or Tribal organization             or
      Tribal IV–D plan which contains the                     if that Tribe or Tribal organization fails               (ii) An amount based on a fee
      required elements listed in paragraphs                  to satisfy one or more provisions or                  schedule not to exceed $25.00.
      (a)(1) through (14) of this section:                    milestones described in its program                      (2) The Tribal IV–D agency may not
                                                              development plan within the timeframe                 charge an application fee in an
         (1) A description of the population
                                                              specified in such plan.                               intergovernmental case referred to the
      subject to the jurisdiction of the Tribal
                                                                                                                    Tribal IV–D agency for services under
      court or administrative agency for child                § 309.70 What provisions governing                    § 309.120.
      support purposes as specified under                     jurisdiction must a Tribe or Tribal                      (3) No application fee may be charged
      § 309.70;                                               organization include in a Tribal IV–D plan?           to an individual receiving services
         (2) Evidence that the Tribe or Tribal                  A Tribe or Tribal organization must                 under titles IV–A, IV–E foster care
      organization has in place procedures for                include in its Tribal IV–D plan a                     maintenance assistance, or XIX
      accepting all applications for IV–D                     description of the population subject to              (Medicaid) of the Act.
      services and promptly providing IV–D                    the jurisdiction of the Tribal court or                  (4) The Tribal IV–D agency must
      services required by law and regulation;                administrative agency for child support               exclude from its quarterly expenditure
         (3) Assurance that the due process                   enforcement purposes and certify that                 claims an amount equal to all fees
      rights of the individuals involved will                 there are at least 100 children under the             which are collected and costs recovered
      be protected in all activities of the                   age of majority in the population subject             during the quarter.
      Tribal IV–D program, including                          to the jurisdiction of the Tribe in
      establishment of paternity, and                                                                               § 309.80 What safeguarding procedures
                                                              accordance with § 309.10 of this part                 must a Tribe or Tribal organization include
      establishment, modification, and                        and subject to § 309.10(c).                           in a Tribal IV–D plan?
      enforcement of support orders;
                                                              § 309.75 What administrative and                        A Tribe or Tribal organization must
         (4) Administrative and management
                                                              management procedures must a Tribe or                 include in its Tribal IV–D plan
      procedures as specified under § 309.75;
                                                              Tribal organization include in a Tribal IV–D          safeguarding provisions in accordance
         (5) Safeguarding procedures as                       plan?                                                 with this section:
      specified under § 309.80;                                 A Tribe or Tribal organization must                   (a) Procedures under which the use or
         (6) Assurance that the Tribe or Tribal               include in its Tribal IV–D plan the                   disclosure of personal information
      organization will maintain records as                   administrative and management                         received by or maintained by the Tribal
      specified under § 309.85;                               provisions contained in this section:                 IV–D agency is limited to purposes
         (7) Copies of all applicable Tribal                    (a) A description of the structure of               directly connected with the
      laws and regulations as specified under                 the IV–D agency and the distribution of               administration of the Tribal IV–D
      § 309.90;                                               responsibilities within the agency.                   program, or titles IV–A and XIX with
         (8) Procedures for the location of                     (b) Evidence that all Federal funds                 the administration of other programs or
      noncustodial parents as specified under                 and amounts collected by the Tribal IV–               purposes prescribed by the Secretary in
      § 309.95;                                               D agency are protected against loss.                  regulations.
         (9) Procedures for the establishment                 Tribes and Tribal organizations may                     (b) Procedures for safeguards that are
      of paternity as specified under                         comply with this paragraph by                         applicable to all confidential
      § 309.100;                                              submitting documentation that                         information handled by the Tribal IV–D
         (10) Guidelines for the establishment                establishes that every person who                     agency and that are designed to protect
      and modification of child support                       receives, disburses, handles, or has                  the privacy rights of the parties,
      obligations as specified under § 309.105;               access to or control over funds collected             including:


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        (1) Safeguards against unauthorized                     (3) Enforcement of child support                    possibility of the nonexistence of sexual
      use or disclosure of information relating               obligations, including requirements that              contact between the parties.
      to proceedings or actions to establish                  Tribal employers comply with income                      (b) The Tribal IV–D agency need not
      paternity, or to establish, modify or                   withholding as required under                         attempt to establish paternity in any
      enforce support;                                        § 309.110; and                                        case involving incest or forcible rape, or
        (2) Prohibitions against the release of                 (4) Location of custodial and                       in any case in which legal proceedings
      information on the whereabouts of one                   noncustodial parents.                                 for adoption are pending, if, in the
      party or the child to another party                       (b) In the absence of written laws and              opinion of the Tribal IV–D agency, it
      against whom a protective order with                    regulations, a Tribe or Tribal                        would not be in the best interests of the
      respect to the former party or the child                organization may provide in its plan                  child to establish paternity.
      has been entered;                                       detailed descriptions of any Tribal                      (c) When genetic testing is used to
        (3) Prohibitions against the release of               custom or common law with the force                   establish paternity, the Tribal IV–D
      information on the whereabouts of one                   and effect of law which enables the                   agency must identify and use accredited
      party or the child to another person if                 Tribe or Tribal organization to satisfy               laboratories which perform, at
      the Tribe has reason to believe that the                the requirements in paragraph (a) of this             reasonable cost, legally and medically-
      release of the information to that person               section.                                              acceptable genetic tests which intend to
      may result in physical or emotional                                                                           identify the father or exclude the alleged
                                                              § 309.95 What procedures governing the
      harm to the party or child; and                                                                               father.
                                                              location of custodial and noncustodial
        (4) Procedures in accordance with any                 parents must a Tribe or Tribal organization              (d) Establishment of paternity under
      specific safeguarding regulations                       include in a Tribal IV–D plan?                        this section has no effect on Tribal
      applicable to Tribal IV–D programs                         A Tribe or Tribal organization must                enrollment or membership.
      promulgated by the Secretary.                           include in its Tribal IV–D plan the
        (c) Procedures under which sanctions                                                                        § 309.105 What procedures governing
                                                              provisions governing the location of                  child support guidelines must a Tribe or
      must be imposed for the unauthorized
                                                              custodial and noncustodial parents and                Tribal organization include in a Tribal IV–D
      use or disclosure of information covered
                                                              their assets set forth in this section.               plan?
      by paragraphs (a) and (b) of this section.                 (a) The Tribal IV–D agency must                       (a) A Tribal IV–D plan must: (1)
      § 309.85 What records must a Tribe or                   attempt to locate custodial or                        Establish one set of child support
      Tribal organization agree to maintain in a              noncustodial parents or sources of                    guidelines by law or action of the
      Tribal IV–D plan?                                       income and/or assets when location is                 tribunal for setting and modifying child
        A Tribal IV–D plan must provide that:                 required to take necessary action in a                support obligation amounts;
        (a) The Tribal IV–D agency will                       case; and                                                (2) Include a copy of child support
      maintain records necessary for the                         (b) The Tribal IV–D agency must use                guidelines governing the establishment
      proper and efficient operation of the                   all sources of information and records                and modification of child support
      program, including records regarding:                   reasonably available to the Tribe or                  obligations;
        (1) Applications for child support                    Tribal organization to locate custodial or               (3) Indicate whether non-cash
      services;                                               noncustodial parents and their sources                payments will be permitted to satisfy
        (2) Efforts to locate noncustodial                    of income and assets.                                 support obligations, and if so;
      parents;                                                                                                         (i) Require that Tribal support orders
        (3) Actions taken to establish                        § 309.100 What procedures for the
                                                              establishment of paternity must a Tribe or            allowing non-cash payments also state
      paternity and obtain and enforce                                                                              the specific dollar amount of the
                                                              Tribal organization include in a Tribal IV–D
      support;                                                plan?                                                 support obligation; and
        (4) Amounts owed, arrearages,                                                                                  (ii) Describe the type(s) of non-cash
      amounts and sources of support                            (a) A Tribe or Tribal organization
                                                              must include in its Tribal IV–D plan the              support that will be permitted to satisfy
      collections, and the distribution of such                                                                     the underlying specific dollar amount of
      collections;                                            procedures for the establishment of
                                                              paternity included in this section. The               the support order; and
        (5) IV–D program expenditures;                                                                                 (iii) Provide that non-cash payments
        (6) Any fees charged and collected, if                Tribe must include in its Tribal IV–D
                                                              plan procedures under which the Tribal                will not be permitted to satisfy assigned
      applicable; and                                                                                               support obligations;
        (7) Statistical, fiscal, and other records            IV–D agency will:
                                                                (1) Attempt to establish paternity by                  (4) Indicate that child support
      necessary for reporting and                                                                                   guidelines will be reviewed and revised,
      accountability required by the Secretary.               the process established under Tribal
                                                              law, code, and/or custom in accordance                if appropriate, at least once every four
        (b) The Tribal IV–D agency will
                                                              with this section;                                    years;
      comply with the retention and access
                                                                (2) Provide an alleged father the                      (5) Provide that there shall be a
      requirements at 45 CFR 74.53, including
                                                              opportunity to voluntarily acknowledge                rebuttable presumption, in any
      the requirement that records be retained
                                                              paternity; and                                        proceeding for the award of child
      for at least three years.
                                                                (3) In a contested paternity case                   support, that the amount of the award
      § 309.90 What governing Tribal law or                   (unless otherwise barred by Tribal law)               that would result from the application
      regulations must a Tribe or Tribal                      require the child and all other parties to            of the guidelines established consistent
      organization include in a Tribal IV–D plan?             submit to genetic tests upon the request              with this section is the correct amount
        (a) A Tribe or Tribal organization                    of any such party, if the request is                  of child support to be awarded; and
      must include in its Tribal IV–D plan                    supported by a sworn statement by the                    (6) Provide for the application of the
      Tribal law, code, regulations, and/or                   party—                                                guidelines unless there is a written
      other evidence that provides for:                         (i) Alleging paternity, and setting                 finding or a specific finding on the
        (1) Establishment of paternity for any                forth facts establishing a reasonable                 record of the tribunal that the
      child up to and including at least 18                   possibility of the requisite sexual                   application of the guidelines would be
      years of age;                                           contact between parties; or                           unjust or inappropriate in a particular
        (2) Establishment and modification of                   (ii) Denying paternity, and setting                 case in accordance with criteria
      child support obligations;                              forth facts establishing a reasonable                 established by the Tribe or Tribal


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      organization. Such criteria must take                   the tribunal enters a finding, that there             assistance from the Tribal TANF
      into consideration the needs of the                     is good cause not to require income                   program and there is an assignment of
      child. Findings that rebut the guidelines               withholding; or                                       support rights to the Tribe’s TANF
      must state the amount of support that                      (2) A signed written agreement is                  agency, or the Tribal IV–D agency has
      would have been required under the                      reached between the noncustodial and                  received a request for assistance in
      guidelines and include a justification of               custodial parent, which provides for an               collecting support on behalf of the
      why the order varies from the                           alternative arrangement, and is                       family from a State or Tribal IV–D
      guidelines.                                             reviewed and entered into the record by               agency.
        (b) The guidelines established under                  the tribunal.                                            (b) Current Receipt of Tribal TANF: If
      paragraph (a) of this section must at a                    (i) Where immediate income                         the family is currently receiving
      minimum:                                                withholding is not in place, the income               assistance from the Tribal TANF
        (1) Take into account the needs of the                of the noncustodial parent shall become               program and has assigned support rights
      child and the earnings and income of                    subject to withholding, at the earliest,              to the Tribe and:
      the noncustodial parent; and                            on the date on which the payments                        (1) There is no request for assistance
        (2) Be based on specific descriptive                  which the noncustodial parent has                     in collecting support on behalf of the
      and numeric criteria and result in a                    failed to make under a Tribal support                 family from a State or Tribal IV–D
      computation of the support obligation.                  order are at least equal to the support               agency under § 309.120 of this part, the
      § 309.110 What procedures governing                     payable for one month.                                Tribal IV–D agency may retain
      income withholding must a Tribe or Tribal                  (j) The only basis for contesting a                collections on behalf of the family, not
      organization include in a Tribal IV–D plan?             withholding is a mistake of fact, which               to exceed the total amount of Tribal
         A Tribe or Tribal organization must                  for purposes of this paragraph, means an              TANF paid to the family. Any
      include in its Tribal IV–D plan copies of               error in the amount of current or                     remaining collections must be paid to
      Tribal laws providing for income                        overdue support or in the identity of the             the family.
      withholding in accordance with this                     alleged noncustodial parent.                             (2) There is a request for assistance in
      section.                                                   (k) Tribal law must provide that the               collecting support on behalf of the
         (a) In the case of each noncustodial                 employer is subject to a fine to be                   family from a State or Tribal IV–D
      parent against whom a support order is                  determined under Tribal law for                       agency under § 9.120 of this part, the
      or has been issued or modified under                    discharging a noncustodial parent from                Tribal IV–D agency may retain
      the Tribal IV–D plan, or is being                       employment, refusing to employ, or                    collections, not to exceed the total
      enforced under such plan, so much of                    taking disciplinary action against any                amount of Tribal TANF paid to the
      his or her income, as defined in                        noncustodial parent because of the                    family. Except as provided in paragraph
      § 309.05, must be withheld as is                        withholding.                                          (f) of this section, the Tribal IV–D
      necessary to comply with the order.                        (l) To initiate income withholding, the            agency must send any remaining
         (b) In addition to the amount to be                  Tribal IV–D agency must send the                      collections, as appropriate, to the
      withheld to pay the current month’s                     noncustodial parent’s employer a notice               requesting State IV–D agency for
      obligation, the amount withheld must                    using the standard Federal income                     distribution under section 457 of the
      include an amount to be applied toward                  withholding form.                                     Act and 45 CFR 302.51 or 302.52, or to
      liquidation of any overdue support.                        (m) The Tribal IV–D agency must                    the requesting Tribal IV–D agency for
         (c) The total amount to be withheld                  allocate withheld amounts across                      distribution in accordance with this
      under paragraphs (a) and (b) of this                    multiple withholding orders to ensure                 section.
      section may not exceed the maximum                      that in no case shall allocation result in               (c) Former Receipt of Tribal TANF: If
      amount permitted under section 303(b)                   a withholding for one of the support                  the family formerly received assistance
      of the Consumer Credit Protection Act                   obligations not being implemented.                    from the Tribal TANF program and
      (15 U.S.C. 1673(b)), but may be set at a                   (n) The Tribal IV–D agency is                      there is an assignment of support rights
      lower amount.                                           responsible for receiving and processing              to the Tribe and:
         (d) Income withholding must be                       income withholding orders from States,
      carried out in compliance with the                                                                               (1) There is no request for assistance
                                                              Tribes, and other entities, and ensuring              in collecting support from a State or
      procedural due process requirements                     orders are properly and promptly served
      established by the Tribe or Tribal                                                                            Tribal IV–D agency under § 309.120 of
                                                              on employers within the Tribe’s                       this part, the Tribal IV–D agency must
      organization.                                           jurisdiction.
         (e) The Tribal IV–D agency will                                                                            pay current support and any arrearages
      promptly refund amounts which have                      § 309.115 What procedures governing the               owed to the family to the family and
      been improperly withheld.                               distribution of child support must a Tribe or         may then retain any excess collections,
         (f) The Tribal IV–D agency will                      Tribal organization include in a Tribal IV–D          not to exceed the total amount of Tribal
      promptly terminate income withholding                   plan?                                                 TANF paid to the family. Any
      in cases where there is no longer a                       A Tribe or Tribal organization must                 remaining collections must be paid to
      current order for support and all                       specify in its Tribal IV–D plan                       the family.
      arrearages have been satisfied.                         procedures for the distribution of child                 (2) There is a request for assistance in
         (g) If the employer fails to withhold                support collections in each Tribal IV–D               collecting support from a State or Tribal
      income in accordance with the                           case, in accordance with this section.                IV–D agency under § 309.120 of this
      provision of the income withholding                       (a) General Rule: The Tribal IV–D                   part, the Tribal IV–D agency must send
      order, the employer will be liable for the              agency must, in a timely manner:                      all support collected, as appropriate, to
      accumulated amount the employer                           (1) Apply collections first to satisfy              the requesting State IV–D agency for
      should have withheld from the                           current support obligations, except as                distribution under section 457 of the
      noncustodial parent’s income.                           provided in paragraph (e) of this                     Act or 45 CFR 302.51 or 303.52, or to
         (h) Income shall not be subject to                   section; and                                          the requesting Tribal IV–D agency for
      withholding in any case where:                            (2) Pay all support collections to the              distribution under this section, except
         (1) Either the custodial or                          family unless the family is currently                 as provided in paragraph (f) of this
      noncustodial parent demonstrates, and                   receiving or formerly received                        section.


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         (d) Requests for Assistance from State               the Tribal IV–D program and must give                    (3) SF 269A, ‘‘Financial Status Report
      or Tribal IV–D Agency: If there is no                   assurance that the program will be                    (Short Form),’’ to be submitted quarterly
      assignment of support rights to the Tribe               administered in conformity with                       within 30 days after the end of each of
      as a condition of receipt of Tribal TANF                applicable requirements of title IV–D of              the first three quarters of the funding
      and the Tribal IV–D agency has received                 the Act, regulations contained in this                period and within 30 days after the end
      a request for assistance in collecting                  part, and other official issuances of the             of each of the first three quarters of the
      support on behalf of the family from a                  Department that specifically state                    liquidation period. The final report for
      State or another Tribal IV–D agency                     applicability to Tribal IV–D programs.                each period is due within 90 days after
      under § 309.120 of this part, the Tribal                                                                      the end the fourth quarter of both the
      IV–D agency must send all support                       § 309.130 How will Tribal IV–D programs               funding and the liquidation period; and
                                                              be funded and what forms are required?                   (4) Form OCSE–34A, ‘‘Quarterly
      collected to either the State IV–D agency
      for distribution in accordance with                        (a) General mechanism. (1) Tribes and              Report of Collections’’ to be submitted
      section 457 of the Act and 45 CFR                       Tribal organizations with approved                    within 30 days after the end of the first
      302.51 and 302.52, or to the Tribal IV–                 Tribal plans under title IV–D will                    three quarters and 90 days after the end
      D agency for distribution under this                    receive Federal grant funds in an                     of the fourth quarter.
      section, as appropriate, except as                      amount equal to the percentage                           (c) Federal share of program
      provided in paragraph (f) of this section.              specified in paragraph (c) of this section            expenditures. (1) During the period of
         (e) Federal Income Tax Refund Offset                 of the total amount of approved and                   start-up funding specified in § 309.16, a
      Collections: Any collections received                   allowable expenditures under the plan                 Tribe or Tribal organization will receive
      based on Federal income tax refund                      for the administration of the Tribal child            Federal grant funds equal to 100 percent
      offset under section 464 of the Act and                 support enforcement program.                          of approved and allowable expenditures
      distributed by the Tribal IV–D agency                      (2) Tribes and Tribal organizations                made during that period. Federal start-
      must be applied to satisfy child support                eligible for grants of less than $1 million           up funds are limited to a total of
      arrearages.                                             per 12-month funding period will                      $500,000.
         (f) Option to Contact Requesting                     receive a single annual award. Tribes                    (2) During a 3-year period, beginning
      Agency for Appropriate Distribution:                    and Tribal organizations eligible for                 with the first day of the first quarter of
      Rather than send collections to a State                 grants of $1 million or more per 12-                  the funding grant specified under
      or another Tribal IV–D agency for                       month funding period will receive four                § 309.135(a)(2), a Tribe or Tribal
      distribution as required under § 309.115                equal quarterly awards.                               organization will receive Federal grant
      (b)(2), (c)(2) and (d), a Tribal IV–D                      (b) Financial Form Submittal                       funds equal to 90 percent of the total
      agency may contact the requesting State                 Requirements. Tribes and Tribal                       amount of approved and allowable
      IV–D agency to determine appropriate                    organizations receiving Federal funding               expenditures made during that period
      distribution under section 457 of the                   under this part are required to submit                for the administration of the Tribal child
      Act, or the other Tribal IV–D agency to                 the following financial forms, and such               support enforcement program.
      determine appropriate distribution                      other forms as the Secretary may                         (3) For all periods following the 3-
      under this section, and distribute                      designate, to OCSE:                                   year period specified in paragraph (c)(2)
      collections as directed by the other                       (1) Standard Form (SF) 424,                        of this section, a Tribe or Tribal
      agency.                                                 ‘‘Application for Federal Assistance,’’ to            organization will receive Federal grant
                                                              be submitted with the initial grant                   funds equal to 80 percent of the total
      § 309.120 What intergovernmental
      procedures must a Tribe or Tribal                       application for funding under                         amount of approved and allowable
      organization include in a Tribal IV–D plan?             § 309.65(a) and (b) (60 days prior to the             expenditures made for the
        A Tribe or Tribal organization must                   start of the funding period);                         administration of the Tribal child
      specify in its Tribal IV–D plan:                           (2) SF 424A, ‘‘Budget Information—                 support enforcement program.
        (a) That the Tribal IV–D agency will                  Non-Construction Programs,’’ to be                       (d) Non-Federal share of program
      extend the full range of services                       submitted annually, no later than                     expenditures. Each Tribe or Tribal
      available under its IV–D plan to respond                August 1 (60 days prior to the start of               organization that operates a child
      to all requests from, and cooperate with,               the funding period) in accordance with                support enforcement program under
      State and other Tribal IV–D agencies;                   § 309.15(a)(2) of this part. With each                title IV–D and § 309.65(a), unless the
      and                                                     submission, the following information                 Secretary has granted a waiver pursuant
        (b) That the Tribe or Tribal                          must be included:                                     to § 309.130(e), must provide the non-
      organization will recognize child                                                                             Federal share of funding, equal to:
                                                                 (i) A quarter-by-quarter estimate of                  (1) 10 percent of approved and
      support orders issued by other Tribes                   expenditures for the funding period;
      and Tribal organizations, and by States,                                                                      allowable expenditures during the 3-
                                                              and                                                   year period specified in paragraph (c)(2)
      in accordance with the requirements                        (ii) Notification of whether the Tribe
      under the Full Faith and Credit for                                                                           of this section or;
                                                              or Tribal organization is requesting                     (2) 20 percent of approved and
      Child Support Orders Act, 28 U.S.C.                     funds for indirect costs and an election              allowable expenditures during the
      1738B.                                                  of a method to calculate estimated                    subsequent periods specified in
                                                              indirect costs; and                                   paragraph (c)(3) of this section.
      Subpart D—Tribal IV–D Program
                                                                 (iii) A narrative justification for each              (3) The non-Federal share of program
      Funding
                                                              cost category on the form; and for                    expenditures must be provided either
      § 309.125 On what basis is Federal funding              funding under § 309.65(a) either:                     with cash or with in-kind contributions
      of Tribal IV–D programs determined?                        (iv) A statement certifying that the               and must meet the requirements found
        Federal funding of Tribal IV–D                        Tribe or Tribal organization has or will              in 45 CFR 74.23.
      programs is based on information                        have the non-Federal share of program                    (e) Waiver of non-Federal share of
      contained in the Tribal IV–D                            expenditures available, as required, or               program expenditures. (1) Under certain
      application. The application must                          (v) A request for a waiver of the non-             circumstances, the Secretary may grant
      include a proposed budget and a                         Federal share in accordance with                      a temporary waiver of part or all of the
      description of the nature and scope of                  paragraph (e) of this section;                        non-Federal share of expenditures.


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         (i) If a Tribe or Tribal organization                   (ii) Has made reasonable, but                      must approve the plan amendment
      anticipates that it will be temporarily                 unsuccessful, efforts to obtain non-                  before approving any additional
      unable to contribute part or all of the                 Federal share contributions; and                      funding.
      non-Federal share of funding under                         (iii) Has provided all required                       (3) Any approved increase in the
      paragraph (d) of this section, it must                  information requested by the Secretary.               Tribal IV–D budget will necessarily
      submit a written request that this                         (4) All statements in support of a                 result in a proportional increase in the
      requirement be temporarily waived. A                    waiver request must be supported by                   non-Federal share, unless a waiver of
      request for a waiver of part or all of the              evidence including, but not limited to,               the non-Federal share has been granted.
      non-Federal share must be sent to ACF,                  a description of how the Tribe or Tribal                 (g) Obtaining Federal funds. Tribes
      included with the submission of SF                      organization’s circumstances relate to its            and Tribal organizations will obtain
      424A, no later than 60 days prior to the                capacity to provide child support                     Federal funds on a draw down basis
      start of the funding period for which the               enforcement services. The following                   from the Department’s Payment
      waiver is being requested, except as                    statements will be considered                         Management System on a letter of credit
      provided in paragraph (e)(1)(ii) of this                insufficient to merit a waiver under this             system for payment of advances of
      section. An untimely or incomplete                      section without documentary evidence                  Federal funds.
      request will not be considered.                         satisfactory to the Secretary:                           (h) Grant administration
         (ii) If, after the start of the funding                 (i) Funds have been committed to                   requirements. The provisions of part 74
      period, an emergency situation such as                  other budget items;                                   of this title, establishing uniform
      a hurricane or flood occurs such that the                  (ii) A high rate of unemployment;                  administrative requirements and cost
      grantee would need to request a waiver                     (iii) A generally poor economic                    principles, shall apply to all grants
      of the non-Federal costs, it may do so.                 condition;                                            made to Tribes and Tribal organizations
      The request for a waiver must be                           (iv) A lack of or a decline in revenue             under this part.
      submitted in accordance with the                        from gaming, fishing, timber, mineral
                                                              rights and other similar revenue                      § 309.135 What requirements apply to
      procedures specified in paragraphs                                                                            funding, obligating and liquidating Federal
      (e)(2), (3) and (4) of this section. Any                sources;
                                                                 (v) A small or declining tax base; and             title IV–D grant funds?
      waiver request other than one submitted                                                                          (a) Funding period. (1) Ongoing
                                                                 (vi) Little or no economic
      with the initial application must be                                                                          funding. Federal title IV–D grant funds
                                                              development.
      submitted as soon as the adverse effect                    (5)(i) If approved, a temporary waiver             will be awarded to Tribes and Tribal
      of the emergency situation giving rise to               submitted under either paragraph                      organizations for use during a 12-month
      the request is known to the grantee.                    (e)(1)(i) or (ii) of this section will expire         period equivalent to the Federal fiscal
         (2) A request for a waiver of part or                on the last day of the funding period for             year of October 1 through September 30.
      all of the non-Federal share must                       which it was approved and is subject to                  (2) Initial grant. A Tribe or Tribal
      include the following:                                  review at any time during the funding                 organization may request that its initial
         (i) A statement of the amount of the                 period and may be revoked, if changing                IV–D grant be awarded for a funding
      non-Federal share that the Tribe is                     circumstances warrant.                                period of less than one year (but at least
      requesting be waived;                                      (ii) Unless the Tribe receives a written           six months) or more than one year (but
         (ii) A narrative statement describing                approval of its waiver request, the                   not to exceed 17 months) to enable its
      the circumstances and justification for                 funding requirements stated in                        program funding cycle to coincide with
      the waiver request;                                     paragraph (d) of this section remain in               the funding period specified in
         (iii) Portions of the Tribal budget for              effect.                                               paragraph (a)(1) of this section.
      the funding period sufficient to                           (iii) If the request for a waiver is                  (b) Obligation period. A Tribe or
      demonstrate that any funding shortfall                  denied, the denial is not subject to                  Tribal organization must obligate its
      is not limited to the Tribal IV–D                       administrative appeal.                                Federal title IV–D grant funds no later
      program and that any uncommitted                           (f) Increase in approved budget. (1) A             than the last day of the funding period
      Tribal reserve funds are insufficient to                Tribe or Tribal organization may request              for which they were awarded. Any of
      meet the non-Federal funding                            an increase in the approved amount of                 these funds remaining unobligated after
      requirement;                                            its current budget by submitting a                    that date must be returned to the
         (iv) Copies of any additional financial              revised SF 424A to ACF and explaining                 Department.
      documents in support of the request;                    why it needs the additional funds. The                   (c) Liquidation period. A Tribe or
         (v) A detailed description of the                    Tribe or Tribal organization should                   Tribal organization must liquidate the
      attempts made to secure the necessary                   submit this request at least 60 days                  Federal title IV–D grant funds obligated
      funds and in-kind contributions from                    before additional funds are needed, to                during the obligation period specified in
      other sources and the results of those                  allow the Secretary adequate time to                  paragraph (b) of this section no later
      attempts, including copies of all                       review the estimates and issue a revised              than the last day of the 12-month period
      relevant correspondence; and                            grant award, if appropriate.                          immediately following the obligation
         (vi) Any other documentation or other                   (2) If the change in Tribal IV–D budget            period. Any of these funds remaining
      information that the Secretary may                      estimate results from a change in the                 unliquidated after that date must be
      require to make this determination.                     Tribal IV–D plan, the Tribe or Tribal                 returned to the Department.
         (3) The Tribe or Tribal organization                 organization must submit a plan                          (d) Funding reductions. As required
      must demonstrate to the satisfaction of                 amendment in accordance with                          under § 309.130(b)(3), a Tribe or Tribal
      the Secretary that it temporarily lacks                 § 309.35(e) of this part, a revised SF 424            organization will report quarterly on
      resources to provide the non-Federal                    and a revised SF 424A with its request                Form SF 269A the amount of Federal
      share. In its request for a temporary                   for additional funding. The effective                 title IV–D grant funds that have been
      waiver, the Tribe or Tribal organization                date of a plan amendment may not be                   obligated and liquidated and the
      must be able to demonstrate that it:                    earlier than the first day of the fiscal              amounts that remain unobligated and
         (i) Lacks sufficient resources to                    quarter in which an approvable plan is                unliquidated at the end of each fiscal
      provide the required non-Federal share                  submitted in accordance with                          quarter during the obligation and
      of costs;                                               § 309.35(f) of this part. The Secretary               liquidation periods. The Department


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      will reduce the amount of the Tribe or                     (ii) Use of Tribal, Federal, State, and               (2) Referral or transfer of cases to
      Tribal organization’s Federal title IV–D                local information resources;                          another Tribal IV–D agency or to a State
      grant funds for the funding period by                      (iii) Cooperation with courts and law              IV–D program when appropriate; and
      any amount reported as remaining                        enforcement officials;                                   (3) Services provided for another
      unobligated on the report following the                    (iv) Securing compliance with the                  Tribal IV–D program or for a State IV–
      last day of the obligation period. The                  requirements of the Tribal IV–D                       D program.
      Department will further reduce the                      program plan in operations under any                     (e) Establishment and operation of a
      amount of the Tribe or Tribal                           agreements;                                           Tribal Parent Locator Service (TPLS) or
      organization’s Federal title IV–D grant                    (v) Development and maintenance of                 agreements for referral of cases to a State
      funds for the funding period by any                     systems for fiscal and program records                PLS, another Tribal PLS, or the Federal
      amount reported as remaining                            and reports required to be made to                    PLS for location purposes.
      unliquidated on the report following the                OCSE based on these records; and                         (f) Activities related to requests to
      last day of the liquidation period.                        (vi) Development of cost allocation                State IV–D programs for enforcement
         (e) Extension requests. A Tribe or                   systems.                                              services for the Federal Income Tax
      Tribal organization may submit a                           (b) Establishment of paternity,                    Refund Offset.
      written request for an extension of the                 including:                                               (g) Establishing and maintaining case
      deadline for liquidating Federal title IV–                 (1) Establishment of paternity in                  records.
      D grant funds. Such a request must be                   accordance with Tribal law codes, and/                   (h) Automated data processing
      sent to ACF, to the attention of the                    or custom in accordance with § 309.100                computer systems for:
      Federal grants officer named on the                     of this part, as outlined in the approved                (1) Planning efforts in the
      most recent grant award. The request                    Tribal IV–D plan;                                     identification, evaluation, and selection
      must be submitted as soon as it is clear                   (2) Reasonable attempts to determine               of a new or replacement automated data
      that such an extension will be needed;                  the identity of a child’s father, such as:            processing computer system solution
      any request received after the end of the                  (i) Investigation;                                 addressing the program requirements
      liquidation period will not be                             (ii) Development of evidence,                      defined in a Tribal plan;
      considered. The request must include a                  including the use of genetic testing                     (2) Operation and maintenance of
      detailed explanation of the extenuating                 performed by accredited laboratories;                 existing Tribal automated data
      circumstances or other reasons for the                  and                                                   processing computer systems;
                                                                 (iii) Pre-trial discovery;                            (3) Procurement, installation,
      request and must state the date by
                                                                 (3) Actions taken by a tribunal to                 operation and maintenance of essential
      which the Tribe anticipates all obligated
                                                              establish paternity pursuant to                       office automation capability;
      funds will be liquidated. Unless the
                                                              procedures established by Tribal law,                    (4) Establishment of
      Tribe receives a written approval of its
                                                              and/or codes or custom in accordance                  intergovernmental agreements with
      request, the deadline stated in
                                                              with § 309.100 of this part;                          States and Tribes for use of an existing
      paragraph (c) of this section remains in                   (4) Identifying accredited laboratories            automated data processing computer
      effect.                                                 that perform genetic tests (as                        system necessary to support Tribal IV–
      § 309.145 What costs are allowable for                  appropriate); and                                     D program operations; and
      Tribal IV–D programs carried out under                     (5) Referrals of cases to another Tribal              (5) Other automation and automated
      § 309.65(a) of this part?                               IV–D agency or to a State to establish                data processing computer system costs
         Federal funds are available for costs of             paternity when appropriate.                           in accordance with instructions and
      operating a Tribal IV–D program under                      (c) Establishment, modification, and               guidance issued by the Secretary.
      an approved Tribal IV–D application                     enforcement of support obligations,                      (i) Staffing and equipment that are
      carried out under § 309.65(a) of this                   including:                                            directly related to operating a Tribal IV–
      part, provided that such costs are                         (1) Investigation, development of                  D program.
      determined by the Secretary to be                       evidence and, when appropriate, court                    (j) The portion of salaries and
      reasonable, necessary, and allocable to                 or administrative actions;                            expenses of a Tribe’s chief executive
      the program. Allowable activities and                      (2) Determination of the amount of the             and staff that is directly attributable to
      costs include:                                          support obligation (including                         managing and operating a Tribal IV–D
                                                              determination of income and allowable                 program.
         (a) Administration of the Tribal IV–D
                                                              non-cash support under Tribal IV–D                       (k) The portion of salaries and
      program, including but not limited to
                                                              guidelines, if appropriate);                          expenses of tribunals and staff that is
      the following:
                                                                 (3) Enforcement of a support                       directly related to required Tribal IV–D
         (1) Establishment and administration                 obligation, including those activities                program activities.
      of the Tribal IV–D plan;                                associated with collections and the                      (l) Service of process.
         (2) Monitoring the progress of                       enforcement of court orders,                             (m) Training on a short-term basis that
      program development and operations,                     administrative orders, warrants, income               is directly related to operating a Tribal
      and evaluating the quality, efficiency,                 withholding, criminal proceedings, and                IV–D program.
      effectiveness, and scope of available                   prosecution of fraud related to child                    (n) Costs associated with obtaining
      support enforcement services;                           support; and                                          technical assistance that are directly
         (3) Establishment of all necessary                      (4) Investigation and prosecution of               related to operating a IV–D program,
      agreements with other Tribal, State, and                fraud related to child and spousal                    from non-Federal third-party sources,
      local agencies or private providers for                 support cases receiving services under                including other Tribes, Tribal
      the provision of child support                          the IV–D plan.                                        organizations, State agencies, and
      enforcement services in accordance                         (d) Collection and disbursement of                 private organizations, and costs
      with Procurement Standards found in                     support payments, including:                          associated with providing such
      45 CFR part 74. These agreements may                       (1) Establishment and operation of an              technical assistance to public entities.
      include:                                                effective system for making collections                  (o) Any other costs that are
         (i) Necessary administrative                         and identifying delinquent cases and                  determined to be reasonable, necessary,
      agreements for support services;                        collecting from them;                                 and allocable to the Tribal IV–D


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      program in accordance with the cost                       (d) Expenditures for jailing of parents               (b) Tribes and Tribal organizations
      principles in OMB Circular A–87. The                    in Tribal IV–D cases;                                 must submit the following information
      total amount that may be claimed under                    (e) The cost of legal counsel for                   and statistics for Tribal IV–D program
      the Tribal IV–D grant are allowable                     indigent defendants in Tribal IV–D                    activity and caseload for each annual
      direct costs, plus the allocable portion                program actions;                                      funding period:
      of allowable indirect costs, minus any                    (f) The cost of guardians ad litem in                 (1) Total number of cases and, of the
      applicable credits.                                     Tribal IV–D cases; and                                total number of cases, the number that
        (1) All claimed costs must be                           (g) All other costs that are not                    are State or Tribal TANF cases and the
      adequately documented; and                              reasonable, necessary, and allocable to               number that are non-TANF cases;
        (2) A cost is allocable if the goods or               Tribal IV–D programs, under the costs
      services involved are assignable to the                                                                         (2) Total number of out-of-wedlock
                                                              principles in OMB Circular A–87.
      grant according to the relative benefit                                                                       births in the previous year and total
      received. Any cost that is allocable to                 Subpart E—Accountability and                          number of paternities established or
      one Federal award may not be charged                    Monitoring                                            acknowledged;
      to other Federal awards to overcome                                                                             (3) Total number of cases and the total
                                                              § 309.160 How will OCSE determine if                  number of cases with a support order;
      funding deficiencies, or for any other                  Tribal IV–D program funds are appropriately
      reason.                                                 expended?                                               (4) Total amount of current support
                                                                                                                    due and collected;
      § 309.150 What start-up costs are                          OCSE will rely on audits required by
      allowable for Tribal IV–D programs carried              OMB Circular A–133, ‘‘Audits of States,                 (5) Total amount of past-due support
      out under § 309.65(b) of this part?                     Local Governments, and Non-Profit                     owed and total collected;
        Federal funds are available for costs of              Organizations’’ and 45 CFR part 74. The                 (6) A narrative report on activities,
      developing a Tribal IV–D program,                       Department has determined that this                   accomplishments, and progress of the
      provided that such costs are reasonable,                program is to be audited as a major                   program, including success in reaching
      necessary, and allocable to the program.                program in accordance with section                    the performance targets established by
      Federal funding for Tribal IV–D program                 215(c) of the circular. The Department                the Tribe or Tribal organization;
      development under § 309.65(b) may not                   may supplement the required audits                      (7) Total costs claimed;
      exceed a total of $500,000, unless                      through reviews or audits conducted by                  (8) Total amount of fees and costs
      additional funding is provided pursuant                 its own staff.                                        recovered; and
      to § 309.16(c). Allowable start-up costs                                                                        (9) Total amount of laboratory
      and activities include:                                 § 309.165 What recourse does a Tribe or
                                                              Tribal organization have to dispute a                 paternity establishment costs.
        (a) Planning for the initial
                                                              determination to disallow Tribal IV–D                   (c) A Tribe or Tribal organization
      development and implementation of a
                                                              program expenditures?                                 must submit Tribal IV–D program
      Tribal IV–D program;
        (b) Developing Tribal IV–D laws,                        If a Tribe or Tribal organization                   statistical and narrative reports required
      codes, guidelines, systems, and                         disputes a decision to disallow Tribal                by paragraph (b) of this section no later
      procedures;                                             IV–D program expenditures, the grant                  than 90 days after the end of each
        (c) Recruiting, hiring, and training                  appeals procedures outlined in 45 CFR                 funding period.
      Tribal IV–D program staff; and                          part 16 are applicable.
        (d) Any other reasonable, necessary,                                                                        PART 310—COMPREHENSIVE TRIBAL
      and allocable costs with a direct                       Subpart F—Statistical and Narrative                   CHILD SUPPORT ENFORCEMENT
      correlation to the initial development of               Reporting Requirements                                (CSE) PROGRAMS
      a Tribal IV–D program, consistent with                  § 309.170 What statistical and narrative
      the cost principles in OMB Circular A–                                                                        I 6. The authority citation for part 310
                                                              reporting requirements apply to Tribal IV–D
      87, and approved by the Secretary.                      programs?                                             continues to read as follows:
                                                                (a) Tribes and Tribal organizations                     Authority: 42 U.S.C. 655(f), 1302.
      § 309.155 What uses of Tribal IV–D
      program funds are not allowable?                        operating a Tribal IV–D program must
                                                                                                                    I 7. Amend § 310.1 by adding a new
        Federal IV–D funds may not be used                    submit to OCSE the Child Support
                                                                                                                    paragraph (c) to read as follows:
      for:                                                    Enforcement Program: Quarterly Report
        (a) Activities related to administering               of Collections (Form OCSE–34A). The                   § 310.1    What does this part cover?
      other programs, including those under                   reports for each of the first three                   *     *    *     *     *
      the Social Security Act;                                quarters of the funding period are due
                                                                                                                      (c) The regulations in this part apply
        (b) Construction and major                            30 days after the end of each quarterly
                                                                                                                    only to grants for periods prior to
      renovations;                                            reporting period. The report for the
                                                                                                                    October 1, 2004.
        (c) Any expenditures that have been                   fourth quarter is due 90 days after the
      reimbursed by fees or costs collected,                  end of the fourth quarter of each                     [FR Doc. 04–6457 Filed 3–29–04; 8:45 am]
      including any fee collected from a State;               funding period.                                       BILLING CODE 4184–01–P




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